Derecho · 2026

La gestación subrogada en Colombia : análisis crítico desde la dignidad humana y el derecho contractual

This monograph analyzes surrogacy from its different perspectives and challenges in relation to human dignity within a legal and ethical context framed by contract law. Human dignity is a fundamental principle enshrined in the Colombian Constitution that demands respect for the fundamental rights of all subjects involved in the surrogacy process, which include the gestational mother, the intended parents, and the nasciturus 5 (the unborn child/children). The main objective of this research is to analyze the different perspectives on surrogacy in Colombia, including how human dignity and autonomy of the will are implicated in this process, and how the lack of regulation may violate the rights of the parties, especially the rights of the gestational mother and the unborn child. This research argues that the protection of human dignity implies ensuring that surrogacy is carried out ethically, avoiding exploitation, and securing the protection of all parties' rights. From a legal perspective, there are gaps since it is not regulated in Colombia and other countries. To this extent, Judgment T-968 of 2009 is taken as a basis, where the Constitutional Court first defined surrogacy in Colombia. However, the jurisprudence falls short of protecting the autonomy and dignity of the gestational mother, which leads to its analysis from a contractual perspective. Furthermore, from a juridical-bioethical perspective, human dignity is conceived as a fundamental principle that demands respect for the autonomy, integrity, and inherent rights of every person, especially in contexts involving reproductive decisions. This conception guides the interpretation and application of norms, ensuring that the legal framework aligns with the values of equality, justice, and the protection of fundamental rights. This paper argues that the lack of regulation of surrogacy in Colombia could violate the protection of the rights of the unborn child in terms of determining filiation (legal parentage) and the protection of the nasciturus's rights through surrogacy. Therefore, it is essential to ensure the protection of the rights of the child conceived through this process, 6 as well as to consider the autonomy and dignity of the gestational mother, avoiding any form of exploitation.

Palabras clave

Tesauro de su biblioteca