BRIEF INTRODUCTION to the Argentine legal system on the issue of reproductive health
In Argentina, the right to procreate consists primarily within the human right to healthFootnote 1 in its broadest sense, including reproductive health and responsible parenthood, but it also feeds from other rights recognized within the Argentine constitutional block: the right to life, the development of the person to the fullest possible extent, human dignity, the right to plan and form a familyFootnote 2 and comprehensive protection of the familyFootnote 3.
In this regard, it is necessary to highlight that while we often speak of “sexual and reproductive rights” as a group, because both are closely interrelated, we understand the need to define and address them separatelyFootnote 4. Why make this distinction, then? Sexual rights state that everyone has the right to freely exercise their sexuality and that no one should suffer discrimination because of their sexual orientation. On the other hand, reproductive rights consecrate that everyone benefits from the freedom and autonomy to decide whether to have children or not, how, when and with whom; all people have the power to decide and determine their reproductive lives.
Thus, an important point for the free exercise of reproductive rights involves both the right of reproduction (positive freedom) as well as the right of non-breeding (negative freedom). In this paper we focus on reproductive rights with our eyes set on positive freedom.
On the basis of existing knowledge, we will start from the idea that there is a subjective right to procreationFootnote 5 which is part of our social, economic and cultural rights, while recognising that there are other vital and superior interests to foster, as indeed there are constitutional prerogatives that make the right to reproductive health and raising a family in conditions of freedom and equalityFootnote 6.
Regarding the coverage of these procedures, Argentina (after years of work by civil society organizations), on June 5th, 2013, approved the national law No. 26,862Footnote 7 of Assisted Fertilization. It is a pioneering law in Latin America, which has adopted a wide stance over coverage standards. This law was regulated on 19th July 2013 by Decree 956/2013Footnote 8.
The provisions of the law are public (art. 10) and aim to ensure full access to comprehensive health-care procedures and assisted reproductive technology (art. 1). The use of the term “full access” implies that in addition to the approach of infertility as a disease, it guarantees free access to these techniques for any person of legal age (art. 7), without discrimination (arts. 6 and 8).
Coverage includes both treatments of lowFootnote 9 and highFootnote 10 complexity, authorized by the administrative authority, including or not the donation of gametes and/or embryos (art. 2). The novelty development is that it authorizes the donation of gametes “... by the spouse, domestic partner or not, or a donor [third party] ...” consistent with the standards of the Argentine constitutional block and the principles of the new Civil and Commercial Code: the principle of equality and non-discrimination, recognition of dignity, individual autonomy, protection against arbitrary or illegal interferences by the State and respect for diversity of the family formsFootnote 11.
For what is relevant here, the new Argentine Civil CodeFootnote 12, Footnote 13 which will take effect from August 2015, regulates descent through assisted human reproduction (AHR) and establishes the procreational will stating that those born by AHR are children of those gave birth and the man or woman who gave their prior, free and informed consent, duly registered in the Civil Registry and regardless of whom provided the gametes (art. 562). On the other hand, the right to information of those born by AHR (which should be under record in a database of birth registrations) and the content and reach of said information, are dealt with in the articles 563 and 564 respectively.
The original draft of this Code also included surrogacy, but the article was removed before being adopted due to opposition of the most conservative groupsFootnote 14. While we will not address this issue we cannot fail to note that there is currently a legal vacuum on a practice – whether we agree with it or not – that is one more stage to the right to procreate. Consequently, by not being regulated, access to couples made up of men, single men and women struggling to bear children is banned and the regulation of surrogacy is an outstanding issue for the Argentine government.
THE CONCEPT OF FAMILY in the light of jurisprudence and its relation with access to Assisted Reproductive Technology (ART)
The techniques of assisted reproduction were originally approached from the concept of infertility. Thus, the beneficiaries could only be heterosexual couples with have fertility limitations. While they were intended as a substitute to intercourse for achieving procreation, on the other hand, they continued the naturalistic logic by linking sexuality and reproduction. In this sense, Diniz and Gomes CostaFootnote 15 argue that “... the diagnosis of unexplained infertility [...] is a category that, by being seated in the naturalistic ideology that presents the conceptive technologies as an improvement of reproduction in the bedroom, presupposes heterosexuality on the infertile couple”.
From this view, access to the coverage of these techniques protects only a social group that responds to the traditional concept of family, consisting of a father and a mother of heterosexual orientation.
However, sexuality and reproduction are not necessarily linked; that is to say, that today, sex is not essential to achieve procreation.
At this point we must ask: how can we deny that new reproductive technologies simply offer new choices? With contraception, heterosexual activity and reproduction had already split, allowing people to choose whether and when to reproduce. New technologies separate the sexual activity of conception, and the latter of gestation, subsequently offering the ability to choose how to reproduceFootnote 16. In this sense, the separation of sexuality and reproduction is closely related to the new forms of family.
Now, how does it relate? To answer this question it is necessary to reiterate that, over the years, from the regulatory sphere, other family forms have also been legitimized, taking the guiding principle of pluralism, and specifically, the principle of family diversity. Thus, in Argentina, the existing law makes visible and legitimizes various family formsFootnote 17 such as single-parenthood and same sex couples, consistent with the principle of equality and non-discrimination.
In other words, family diversity in society recognizes that there are different forms of family composition. Among them are single parents and families of same-sex couples. For these families, as well as for many others, sexuality and reproduction are separated.
Based on the foregoing, we need to change how we look at access to assisted reproductive techniques. For single women or same-sex couples, the issue to be addressed will not be – in all cases – infertility, but rather infecundity.
In this regard, it has been said that “[I]nfecundity and infertility are expressions of different phenomena, although in the field of reproductive technologies they are two closely connected concepts. Infecundity is the absence of children; a woman, a man or a barren couple that have no children. Infecundity may be voluntary or involuntary. In the first case, the absence of children is part of a personal or spousal project and not listed as a biomedical problem but involuntary childlessness is one commonly translated in biomedical terms as synonymous with infertility. But it should be clear that not always a woman or a man or involuntarily infertile couple present clinical fertility restrictions, nor are the causes of involuntary childlessness always discovered”.Footnote 18
In accordance with the vision that focuses on the issue not only from infertility but also from infecundity, the sanction of Law No. 26,862 has taken an important step in terms of equal access to reproductive rights. It challenges us to view the human being as a whole, in their values, emotions and for desires for maternity or paternity that may be delayed for various reasons, and accompanies the spirit of the provisions of the new Civil and Commercial Code.
National Level
In the case of ArgentinaFootnote 19, we want to mention the ruling “K., CN w/ OSECAC w/o writ”Footnote 20 in which the Federal Court of Bahia Blanca, prior the enactment of Law 26,862, had rejected the plaintiff's claim for full and comprehensive coverage of egg donation treatment (a technique that allows a woman to supply eggs to another so that the latter can achieve pregnancy). The Court's arguments were based on the lack of specific regulations and the understanding that heterologous fertilization “infringed the right of children to be conceived in marriage and for marriage”Footnote 21.
The Supreme Court of Justice of the Nation, unanimously (with the vote of ministers Lorenzetti, Highton de Nolasco, Petracchi and Maqueda) stated that the case was abstract following enactment of Law 26,862 and reversed the judgment. Nonetheless, neither the Court nor the Attorney General's OfficeFootnote 22 questioned the position of the judgment Court, which was contrary to all international standards governing the matter, the American Convention on Human Rights at its art. 17 ss. 5 states that equal rights for children born out of wedlock and those born in wedlock should be recognized.
We also wish to emphasize the fundamentals of La Plata's Criminal Court No. 4, in the case “N., V.A. and another w/ Instituto Obra Médico Asistencial (I.O.M.A.) w/o writ”Footnote 23, which upheld the writ filed by two women united in same sex marriage. The Court held that, in the case, it was clear that no heterologous fertilization could be made while using the gametes of each member of the couple; which constitutes a flagrant discrimination of the provincial State – that only allows the coverage of homologous fertility treatments – to an same sex marriage.
On the principle of family diversity, these two cases allow us to show two opposing positions of legal operators to resolve complaints of heterologous fertilization: while one is answered with the broad concept of family, the other rejects it.
On one hand, although the resolution is prior to the enactment of the Law 26,862, it is clear that the position of the Federal Court of Bahia Blanca realizes a traditional conception of “the family” that does not include its various forms and understands that the right to form a family is limited to “marriage”. This view not only ignores reality but infringes the reproductive rights of the people involved, while it ignores the evolution of Argentine law regarding the legitimacy of diverse family forms.
Currently, it is more appropriate to refer to a concept of families (plural) leaving the only and traditional family behind. It is enough to look at the reality to argue that there is not one single form of family. In this regard, we highlight the position of the La Plata's Criminal Court No. 4, in accordance with national law and international law of human rights.
Regionally: Inter-American Human Rights System
In “Artavia Murillo and others v. Costa Rica”Footnote 24 nine couples filed a petition with the Inter-American Commission on Human Rights, to review the ruling of the Constitutional Chamber of the Supreme Court of Costa Rica (revision date March 15, 2000) which had declared unconstitutional a decree regulating the technique of in vitro fertilization (IVF), and therefore prohibited the practice in the country. As a result, stakeholders are forced to stop treatment or, in other cases, to travel abroad to access them.
The Inter-American Court of Human Rights (IACHR) stated that the prohibition of in vitro fertilization in Costa Rica was a violation of human rights and ordered the removal of all legal restrictions preventing access to reproductive technology. Specifically, it declared the State's international responsibility for having infringed the right to private and family life, integrity in relation to personal autonomy and sexual health; the right to enjoy the benefits of scientific and technological progress; and the principle of non-discrimination.
Thus, the IACHR held that the scope of privacy is characterized by being exempt and immune to invasions or abusive and arbitrary aggressions by third parties or public authorityFootnote 25. Linked to this, the concept of freedomFootnote 26, in a broad sense includes the ability to do and not do everything that is legally allowed. In other words, it is the right of every person to organize, under the law, their individual and social life according to their own options and convictions. Freedom, thus defined, is a basic human right, an attribute of the person, projected throughout the American Convention. This concept of freedom implies the ability of every human being to self-determine and freely choose the options and circumstances that give meaning to their existence, according to their own and convictionsFootnote 27.
The concept of privacy encompasses aspects of physical and social identity and includes the right to personal autonomy, personal development and the right to establish and develop relationships with other human beings and with the outside world. The effectiveness of the right to privacy is critical to the ability to exercise personal autonomy on the future course of relevant events in the quality of life of the individual. In this sense, motherhood is an essential part of the free development of the personality of women and the decision of whether or not a parent is part of the right to privacy and includes the decision to become a parent in the genetic or biological senseFootnote 28.
In addition, the Inter-American Court considered that this case involved a particular combination of different aspects of private life which relate to the right to form a family, the right to physical and mental integrity, and specifically reproductive rights of individualsFootnote 29.
The right to privacy is related to reproductive autonomy and access to reproductive health services, which involves the right of access to necessary medical technology to exercise that right.Footnote 30
Lastly, the IACHR concluded that the prohibition of IVF led to discriminatory effects – linked with the disproportionate impact produced in relation to disability (on the basis of infertilityFootnote 31), gender (product of social biases and stereotypes that define femininity through maternityFootnote 32) and the economic situation (for the greater possibilities for accessing techniques by those who have greater economic resourcesFootnote 33).
Regarding this last point, although in this case the Inter-American Court made no mention (because it was not raised) of access to AHR by single people or couples of the same sex, “Atala Riffo and girls vs Chile”Footnote 34 had already mentioned sexual orientation as a basis for differential treatment in relation to motherhood; a category of prohibited discrimination. Here, it is important to consider the facts of the case. In review: Karen Atala Riffo, kept the child custody of her three daughters after her divorce. When she decided to share the house with her lesbian partner, the father asked for the custody of the girls before the Juvenile Court of Villarrica. Both this court of law and the Court of Appeals of Temuco rejected the demand. However, the Fourth Chamber of the Supreme Court of Chile granted the definitive custody of the girls to their father. In relation to this, specifically, the IACHR held that a determination from unfounded and stereotyped presumptions of parental capacity and suitability to guarantee and promote the welfare and development of children is not adequate to ensure the protection of the interests of the child. It added that considerations based on stereotypes about sexual orientation, pre-conceptions of the attributes, behaviors or characteristics possessed by homosexuals or the impact those can have allegedly in girls and boys, are not permissibleFootnote 35.
Also, the IACHR stated that in contemporary societies there are social, cultural and institutional changes aimed to address more inclusive developments of all life options for their citizens, as evidenced in the social acceptance of interracial couples, single parents or divorced couples, which at other times were not accepted by society. In this sense, law and states should aid social progress, otherwise there is a serious risk of legitimising and consolidating various forms of discrimination in violation of human rightsFootnote 36.
Finally, the IACHR stated that there is no ‘closed family’ concept in the Convention and it is far from protecting only a traditional family model, and reiterated that the concept of family life is not limited only to marriage and should include other family ties where the parties have made a common life together outside of matrimony.Footnote 37
Moreover, in the case “Fornerón and daughter vs. Argentina”Footnote 38, where, the day after birth of the child M., Mrs. Enriquez gave her daughter in temporary custody for adoption to a B-Z married couple in the presence of the Substitute Ombudsman for Children and the Poor of the city of Victoria. Leonardo Aníbal Javier Fornerón, father of the girl, was unaware of pregnancy until it was well advanced and, once aware of it, he asked Mrs. Enriquez several times if he was the father, which denied by the mother on all occasions. After the birth of M, and being unsure about the whereabouts of the child and its paternity, Mr. Fornerón came to the Public Defender of Children and the Poor, saying he wanted, if rightful, to take care of the child. A month after the birth of M., Mr. Fornerón legally recognised his daughter. In court proceedings regarding custody, Mr. Fornerón was called to appear before the judge and every time mentioned his opposition to the guard and required that the girl was given to him. Also, a DNA test confirmed his biological paternity. However, the trial judge granted legal guardianship of the child to B-Z marriage. Mr. Fornerón appealed all court decisions of the various courts that intervened. Finally, the Superior Court of Entre Rios upheld the lower court judgment granting custody of M. to the married couple B-Z. Subsequently, the trial judge granted the simple adoption of the child to the couple.
The IACHR made clear its opposition to preconceived ideas about the role of a man and a woman in terms of certain appointments or reproductive processes in relation to a future parenthood. Accordingly, it argued that it is notions based on stereotypes that suggest the need for any bonding or assumed mutual desires to start a family, the alleged importance of “formality” in the relationship and the role of a father during pregnancy.
It also questioned the preconceived idea of what single parenthood means, understanding the marital status of the single father, as a basis to deprive him legally of the exercise of his functions, on the understanding that this constitutes a denial of a right based on stereotypes about capacity, qualities or attributes to exercise fatherhood individually. In short, the IACHR noted that the American Convention does not give a ‘closed family’ concept, nor protect just one family model and that the term “family” should be understood broadly, covering all persons linked by close kinship.
Of the standards set by the IACHR in these cases, it is clear that international regulations applicable to this matters enshrine the diversity of families forms and this should be received by local courts, pursuant to that held by the Supreme Court of Justice of the Nation in the preceding “Mazzeo”Footnote 39.
At this point, it is clear that all people are granted with the right to procreate. Although this statement appears obvious, we believe it is needed to highlight that this right is closely linked to the principle of familiar diversity. Why? Because many times the effective exercise of this right is conditioned upon preconceived ideas the judge may have, on the concept of family or families.
Undoubtedly, this influences judicial officers who must decide whether or not to grant coverage of assisted fertilization on daily basis.
FINAL THOUGHTS: EQUAL ACCESS TO REPRODUCTIVE HEALTH IN ARGENTINA
In this section we are interested in highlighting the issue of access to reproductive health coverage from two angles: first, from infertility and, secondly, in relation to infecundity. In this line of analysis, we argue that, in both situations – although from different perspectives – people in vulnerable situations are involved and their rights must be guaranteed.
In the case of infertility, we understand that access to assisted fertilization techniques, exercising reproductive rights, should be approached from the regulation that protects people with disabilitiesFootnote 40.
In the case, of to infecundity, the approach to access techniques will arise from the right to procreate for same sex couples and single parents, in light of the principle of equality and non-discrimination. We note that both situations involve the reproductive rights of people in vulnerable situations, whether by reason of disability, by gender, on the basis of sexual orientation or marital status. It is known that even today – despite the legislative advances that have recognized reproductive rights as human rights – in Argentina there still exists a society with much resistance to accept these differences. While both domestic and international law has separated reproductive rights from the principle of pluralism, we cannot ignore the fact that there continues to be opposition from some administrativeFootnote 41 and legal practitioners, to facilitate the exercise of such rights.
In addition, we reiterate the Argentine failure to regulate surrogacy. This loophole excludes couples made up of men, women struggling to bear children and single men of their legitimate right to form a family.
In summary, we point out that the challenges for equal access to reproductive health in Argentina involve, firstly, the removal of barriers so that both people with infertility issues as well as those included within the definition of infecundity can exercise their right to procreate effectively. On the other hand, for couples of men, women who want to be mothers and cannot bear children and single men, the challenges relate to the regulation of surrogacy. We do not fail to notice that behind these challenges lies another, perhaps bigger challenge, that is the internalisation of the diversity of family form by society.
It is at this point that access to justice for women and men plays a major role in ensuring their right to procreate is made effective. We understand that people who want access to assisted reproduction techniques are in a vulnerable position in the terms established by the 100 Rules of BrasiliaFootnote 42, those who, because of age, gender, physical or mental, or social, economic, ethnic and/or cultural circumstances, find it particularly difficult to fully exercise their rights in the system of justice as recognized by law (Rule 3).
In light of this, we see that in Argentina, even after the enactment of Law 26,862, these rights still need to be enforced by courts. Consequently, it is clear that these cases require an effective defense to gain access to justice for people in vulnerable conditions without discrimination.
Finally, it is crucial that such preconceptions about the concept of family are set aside and that Inter-American standards, we have mentioned above, are taken into account by the Argentine legal operators in resolving legal claims on the coverage of assisted fertilization treatments.
In short, we hold that the Argentine courts must guarantee the right to reproductive health and the right to form a family, in light of the principle of familiar diversity and the principle of equality and non-discrimination that are already recognized both in national and international legislation.
THE RESEARCH ON REPRODUCTIVE RIGHTS: Legal sources and academic works
Right to Health
■ World Health Organization (WHO). Constitution of the World Health Organization, adopted by the International Health Conference held in New York from June 19th to July 22nd, 1946, and took effect on April 7th 1948. WHO Official site http://www.who.int To access the Spanish text of the Constitution of the WHO see http://apps.who.int/gb/bd/PDF/bd47/SP/constitucion-sp.pdf?ua=1. English version available http://www.who.int/governance/eb/who_constitution_en.pdf?ua=1. Accessed: March 11th, 2015.
■ Constitution of Argentina. Art. 75 ss. 22: grants constitutional hierarchy -among others- to the American Declaration of Rights and Duties of Man (Article XI.); Universal Declaration of Human Rights (arts. 25 and 30). Text available in Spanish: http://bibliotecadigital.csjn.gov.ar/Constitucion-de-la-Nacion-Argentina-Publicacion-del-Bicent.pdf; English: http://bibliotecadigital.csjn.gov.ar/constitucion-traduccion-ingles.pdf and French: http://bibliotecadigital.csjn.gov.ar/constitucion-traduccion-frances.pdf. Accessed: March 11th, 2015.
■ Additional protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art 10. Spanish version: http://www.oas.org/juridico/spanish/tratadow/oa-52.html and English: http://www.oas.org/juridico/english/treatiew/oa-52 .html. Accessed: March 11th, 2015.
■ Constitution of the Autonomous City of Buenos Aires. Arts. 20 and 37. Spanish version available in http://www.legislatura.gov.ar/documentow/oconstitucionew/oconstitucion-ciudad.pdf and http://infoleg.mecon.gov.ar/?page_id=166 Accessed: March 13th, 2015.
■ Law 418 of the Autonomous City of Buenos Aires http://www.cedom.gov.ar/ew/olegislacion/normaw/oleyew/oley418.html Accessed: March 13th, 2015.
■ Alicia Ely Yamin (comp) y Gloppen, Siri (comp) La lucha por los derechos de la salud ¿puede la justicia ser una herramienta de cambio? (Buenos Aires: Siglo Veintiuno Editores 2013).
Amparo Writ
■ Constitution of Argentina. Art. 43. To view the reforms on the text of the Argentine Constitution: http://www.infoleg.gov.ar/?page_id=63
Text available in Spanish: http://bibliotecadigital.csjn.gov.ar/Constitucion-de-la-Nacion-Argentina-Publicacion-del-Bicent.pdf; English: http://bibliotecadigital.csjn.gov.ar/constitucion-traduccion-ingles.pdf and French: http://bibliotecadigital.csjn.gov.ar/constitucion-traduccion-frances.pdf. Accessed: March 11th, 2015.
■ Gloria Orrego Hoyos The Writ Context in Latin American Jurisdiction: an approach to an empowering action
English version: http://www.nyulawglobal.org/globalex/Amparo.htm
Division between sexuality and childbearing
■ Lucia Ariza “‘Dar vida’: en torno al derecho a la cobertura médica del tratamiento de la infertilidad”, in Karina Felitti (coord.) Madre no hay una sola. Experiencias de maternidad en la Argentina actual (Buenos Aires: Ciccus 2011)
Women's freedom and new reproductive technologies
■ General Recommendation No. 24 of the CEDAW Committee. Available in Spanish http://www.un.org/womenwatch/daw/cedaw/recommendationw/orecomm-sp.htm#recom24, English http://www.un.org/womenwatch/daw/cedaw/recommendationw/orecomm.htm#recom24 and French http://www.un.org/womenwatch/daw/cedaw/recommendationw/orecomm-fr.htm#recom24 Accessed: March 13th, 2015.
■ Tamar Pitch “Libertad femenina y nuevas tecnologías reproductivas” Chapter I in Un derecho para dos. La construcción jurídica de género, sexo y sexualidad (Madrid: Trotta 2003).
Infertility and Infecundity
■ Debora Diniz and Rosely Gomes Costa Infertilidad e infecundidad: acceso a las nuevas tecnologías conceptivas (SeriAs para el debate N° 4, Agosto 2005, Lima, Perú, Campaña por la convención de los derechos sexuales y los derechos reproductivos)
Available in Spanish: http://www.insumisos.com/lecturasinsumisaw/oDerechos%20reproductivos.pdf Accessed: March 13th, 2015.
Coverage of assisted human reproduction in Argentina
■ Law 26,862 on medically assisted reproduction. Published in the Official Bulletin of June 26th, 2013. To view changes and updates of the text of this law in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=216700 Accessed: March 13th, 2015.
■ Regulatory Decree No. 956/2013, of Law 26,862. Text in Spanish available at: http://www.infoleg.gob.ar/infolegInternet/verNorma.do;jsessionid=E0A4D1318F8C062471230AF8DDFBBDAA?id=217628 Accessed: March 13th, 2015.
■ María Victoria Famá Incidencia de la Ley 26.862 sobre acceso integral a las técnicas de Reproducción Asistida en el Derecho de Familia y de las Personas (DFyP 2013 August) 104. Online Quote: AR / DOW/ 2625/2013.
■ Marisa Herrera La ley de cobertura médica para los tratamientos de reproducción asistida. Saldando deudas (La Ley 2013-C) 1281. Online Quote: AR / DOW/ 2256/2013.
■ Oscar Ernesto Garay Cobertura, igualdad e inclusión en la ley de fertilización humana asistida (La Ley 2013-D) 742. Online Quote: AR / DOW/ 2361/2013.
■ Pablo Oscar Rosales Breve reseña de la reciente Ley Nacional 26.862 de Reproducción Médicamente Asistida (DFyP 2013 Agosto) 72. Online Quote: AR / DOW/ 2636/2013.
■ Andrés Gil Dominguez La Ley de Acceso Integral a los Procedimientos y Técnicas Médico Asistenciales de Reproducción Humana Asistida: sus proyecciones constitucionales y convencionales (DFyP 2013 Agosto) 24. Online Quote: AR / DOW/ 2629/2013.
■ Marisa Herrera and Eleonora Lamm Cobertura médica de las técnicas de reproducción asistida. Reglamentación que amplía el derecho humano a formar una familia (La Ley 2013-D) 1037. Quote online: AR / DOW/ 2899/2013.
■ File: 12. K. XLIX. REX. K., C. N, w/ O.S.E.C.A.C. w/o Writ action [2014] Supreme Court of Justice of the Nation. Available in Spanish at: http://servicios.csjn.gov.ar/confal/ConsultaCompletaFallos.do?method=verAnalisisDocumental&id=71162 Accessed: March 13th, 2015.
■ N., V. A. and other w/ Instituto Obra Médico Asistencial (I.O.M.A.) w/o writ [2014] La Plata Criminal Court No. 4. Available in Spanish at: http://www.rubinzalonline.com.ar/fallo/9335/ Accessed: March 12th, 2015.
■ Mariana Carbajal Artilugios para discriminar (Página 12. 27 de diciembre de 2014).
Available in Spanish at: http://www.pagina12.com.ar/diario/sociedad/3-262750-2014-12-27.html Accessed: March 13th, 2015.
■ Marisa Herrera; Natalia De La Torre and Agustina Bladillo Cubrir y descubrir la lógica de la doctrina jurisprudencial en materia de técnicas de reproducción asistida (Suplemento Jurisprudencia Argentina, JA 2013–II 2013/05/01) 13. Online Quote: Abeledo Perrot AP / DOW/ 521 / 2013.
Assisted human reproduction and its approach in Argentina
Pablo Oscar Rosales Fertilización humana asistida. Aspectos legales, jurisprudenciales y sociales desde un abordaje interdisciplinario (1a ed. – Buenos Aires: La Ley; Departamento de Publicaciones de la Facultad de Derecho, UBA).
Available in Spanish at: http://www.lausina.org/datosdeinterew/olibrow/oLibro%20fertilizacion%20Humana%20Asistida_%20Base%20PDF.pdf Accessed: March 13th, 2015.
Right to Family Planning
■ Law 23,179 approves the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the Assembly of the UN on 12/18/79. Art. 16 ss. e) To view the norm with modifications and updates in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do;jsessionid=D59BD28E5B437C2150B518E3C43074B3?id=26305 Accessed: March 2nd, 2015.
Right to enjoy the benefits of scientific progress
■ International Covenant on Economic, Social and Cultural Rights (Argentina Law 23,313)
To review the norm with its modifications and updates in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=23782. Accessed: March 11th, 2015. English version: http://www.ohchr.org/EN/ProfessionalInterest/Pagew/oCESCR.aspx. Accessed: March 11th, 2015.
Right of protection to the family
■ American Convention on Human Rights. Art. 17 (Argentina Law 23,054) For a norm with its modifications and updates in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=28152. Accessed: March 11th, 2015. English version: http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm. Accessed: March 11th, 2015.
■ Constitution of Argentina. Art. 14bis. To view the reforms on the text of the Argentine Constitution: http://www.infoleg.gov.ar/?page_id=63
Text available in Spanish: http://bibliotecadigital.csjn.gov.ar/Constitucion-de-la-Nacion-Argentina-Publicacion-del-Bicent.pdf; English: http://bibliotecadigital.csjn.gov.ar/constitucion-traduccion-ingles.pdf and French: http://bibliotecadigital.csjn.gov.ar/constitucion-traduccion-frances.pdf. Accessed: March 11th, 2015.
Reproductive rights of people with disabilities
■ Law 26.378 approved by the Convention on Rights of Persons with Disabilities. Art. 23
For a norm with its modifications and updates in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=141317. Accessed: March 11th, 2015. English version: http://www.un.org/disabilitiew/odefault.asp?id=199. Accessed: March 11th, 2015.
■ Law 27,044 which gives constitutional status to the previous Convention. To view upgrades to this law in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=239860. Accessed: March 11th, 2015.
Descent through assisted reproduction techniques
■ Law 26,994, approved by the Civil and Commercial Code of Argentina.
To view changes or updates to the text of the law in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=235975. Accessed: March 11th, 2015.
■ Aida Kemelmajer de Carlucci, Marisa Herrera and Eleonora Lamm Ampliando el campo del derecho filial en el derecho argentino. Texto y contexto de las técnicas de reproducción humana asistida (Revista Derecho Privado. Año I Nro. 1. Ediciones Infojus, Cita online Infojus: DACF120032) 3. http://www.infojus.gob.ar/aida-kemelmajer-carlucci-ampliando-campo-derecho-filial-derecho-argentino-texto-contexto-tecnicas-reproduccion-humana-asistida-dacf120032-2012/123456789-0abc-defg2300-21fcanirtcod . Accessed: March 11th, 2015.
■ File. No. 35403/0 P. M. E. and other w/ ObSBA w/o writ [2009] and Administrative Contentious Court of CABA. No. 5 by Dr. Elena Liberatori -subrogate. Ruling Accessed by Silvia Fernández Dos madres para un niño. Sobre la determinación judicial de la filiación materna del hijo concebido mediante técnicas de fertilización asistida por parte de una pareja homosexual (footnote 16/6/2011 - MJ-DOC-5388-AR | MJD5388).
Surrogate maternity
■ Rocío Carbajal Análisis de la maternidad subrogada en Argentina: una mirada extensiva a países de América Latina (Tesis de grado, Universidad de San Andrés, Buenos Aires, 4 de agosto de 2014) http://repositorio.udesa.edu.ar/jspui/handle/10908/10805. Accessed: March 14th, 2015.
■ Cindy Arteta Acosta Maternidad Subrogada (Revista Ciencias Biomédicas. 2, 1: 91–97, 2011) Available on: http://revistacienciasbiomedicas.com/index.php/revciencbiomed/article/viewFile/65/60. Accessed: March 11th, 2015.
■ Sabrina M. Berger La copaternidad en los casos de maternidad subrogada (La Ley 2012). Online Quote: AR / DOW/ 4418/2012)
■ “Código Civil: eliminan el alquiler de vientre pero sigue el divorcio exprés y la separación de bienes”, iprofesional: Legales, 15 de noviembre de 2013. http://www.iprofesional.com/notaw/o174545-Cdigo-Civil-eliminan-el-alquiler-de-vientre-pero-sigue-el-divorcio-exprs-y-la-separacin-de-bienes. Accessed: March 11th, 2015.
■ Enrique Federico Rodolfo Escobar Importancia de la institución jurídica de la maternidad subrogada, análisis de las consecuencias positivas legales de su incorporación al sistema jurídico guatemalteco. (Tesis de grado. Universidad de San Carlos de Guatemala, 2011) Available on: http://biblioteca.usac.edu.gt/tesiw/o04/04_8881.pdf. Accessed: March 11th, 2015
■ L. Mir Candal La maternidad intervenida. Reflexiones en torno a la maternidad subrogada (Revista Redbioética/ UNESCO, 174–188, 2010). http://www.unesco.org.uy/ci/fileadmin/shw/oredbioetica/revista_1/Leila.pdf. Accessed: March 2nd, 2015
Marriage between same sex individuals in Argentina
■ Law 26,618
To view updates or amendments to this law in Spanish: http://www.infoleg.gob.ar/infolegInternet/verNorma.do?id=169608. Accessed: March 11th, 2015.
Standards of the Inter American Court of Human Rights on assisted human reproduction, right to procreate and the right to privacy
■ Artavia Murillo and others (IVF) v Costa Rica (2012) ICourtHR Series C No. 257.
Recitals 142, 143, 144, 146, 148, 187, 293, 294, 302 and 303 You can see the full ruling in English: http://www.corteidh.or.cr/docw/ocasow/oarticulow/oseriec_257_ing.doc, Portuguese: http://www.corteidh.or.cr/docw/ocasow/oarticulow/oseriec_257_por.pdf and Spanish: http://www.corteidh.or.cr/docw/ocasow/oarticulow/oseriec_257_esp.pdf. You can also find the summary in Spanish: http://www.corteidh.or.cr/docw/ocasow/oarticulow/oresumen_257_esp.pdf; and technical record of the case in Spanish: http://www.corteidh.or.cr/cf/Jurisprudencia2/ficha_tecnica.cfm?nId_Ficha=235&lang=es Accessed: March 11th, 2015.
■ Paola Bergallo Public hearing held in the case “Artavia Murillo and others (IVF) vs. Costa Rica before the ICourtHR. https://vimeo.com/48973738. Accessed: March 11th, 2015.
Standards of the Inter American Court of Human Rights on the broad concept of family
■ Atala Riffo and Girls Vs. Chile (2012) ICourtHR Series C No. 239. Recitals 91, 111, 120 and 142. You can view the complete ruling http://corteidh.or.cr/docw/ocasow/oarticulow/oseriec_239_ing.doc English, Portuguese: http://corteidh.or.cr/docw/ocasow/oarticulow/oseriec_239_por.doc and Spanish :http://corteidh.or.cr/docw/ocasow/oarticulow/oseriec_239_esp.pdf You can also find the summary in Spanish: http://www.corteidh.or.cr/docw/ocasow/oarticulow/oresumen_239_esp.pdf; and technical record of the case in Spanish: http://www.corteidh.or.cr/cf/Jurisprudencia2/ficha_tecnica.cfm?nId_Ficha=196&lang=es Accessed: March 11th, 2015.
■ Fornerón and daughter Vs. Argentina (2012) ICourtHR Series C No. 242. Recitals 94, 96 and 98. You can see the full judgment in English: http://corteidh.or.cr/docw/ocasow/oarticulow/oseriec_242_ing.doc, Portuguese: http://corteidh.or.cr/docw/ocasow/oarticulow/oseriec_242_por.doc and Spanish: http://corteidh.or.cr/docw/ocasow/oarticulow/oseriec_242_esp.pdf You can also find the summary in Spanish: http://www.corteidh.or.cr/docw/ocasow/oarticulow/oresumen_242_esp.pdf; and technical record of the case in Spanish: http://www.corteidh.or.cr/cf/Jurisprudencia2/ficha_tecnica.cfm?nId_Ficha=203&lang=es Accessed: March 11th, 2015.
Family relations in the Argentine Civil and Commercial Code
■ Marisa Herrera Principales cambios en las relaciones de familia en el nuevo Código Civil y Comercial de la Nación (Infojus 2014) http://www.infojus.gob.ar/marisa-herrera-principales-cambios-relaciones-familia-nuevo-codigo-civil-comercial-nacion-dacf140723-2014-10-02/123456789-0abc-defg3270-41fcanirtcod. Accessed: March 11th, 2015.
Acknowledgment
The authors wish to express their special thanks to Gloria Orrego Hoyos for her advice and assistance with this article.
