by Núria González, Alejandra Vera, Victoria Argoty, Nancy Gómez Ramos
From the neoliberal and myopic perspective of the government and the CC itself, the assumptions of “altruism” and “free choice” are used to consider the sale of babies and the renting of women a legitimate and legal industry.
Neither the alleged altruism nor the myth of freedom of choice can shake the legal argument that underpins the inadmissibility of surrogacy in any case.
Namely: people do not belong to anyone, any person, of any age. No one has title to anyone’s property, not even the mothers of their sons and daughters. Mothers do not own what they give birth to; they are mothers of what they give birth to. If they owned the lives of their offspring, they could even dispose of them to the point of life or death.
And since people do not belong to anyone, no one can be given, sold or bought by anyone.
Therefore, it makes no difference whether there is payment or not; it makes no difference even if there were a free choice, which is never such, since no one owns the ownership of another human being so as to decide to give him away, free or for payment, and no one can receive another human being, free or for payment, since the one who is giving him away has no right to do so. Only the State can receive them to become their custodian until adoption, in which their human rights are guaranteed.
And everything else that is said in this regard is superfluous, since, having exposed the legally immovable situation that people are out of commerce, little more would have to be added,
According to the drafts of the health reform that are known so far, the figure of the insurer would disappear.
To defend the opposite is, directly, to defend the restoration of slavery, and in the case of Colombia, that of neo-colonization, since, once again, it will be foreign and wealthy men and women who will come to Colombia to extract the last resource they have left to usurp, which is the health of their women and their babies. A new colonization facilitated by the current Colombian government.
The government and the Constitutional Court forget that the fact that there are masses of women precarious enough to accept their own sexual and reproductive exploitation does not turn this exploitation into a legitimate industry; on the contrary, a moderately humanistic government should be implementing alternatives for a dignified life so that women do not have to sell their sex and their babies. It is very strange that the socioeconomic and materialistic analysis of the conditions of the impoverished and marginalized population is not applied in this aspect.
It seems obvious, like so many other things that need to be re-explained today, that a woman’s physiological and reproductive functions, as well as her organs, are part of her bodily integrity and therefore of her human dignity.
For this reason, neither the bodies of women, nor their organs, nor the creatures they gestate and give birth to should be considered the object of a commercial contract or of any kind, since this necessarily implies the commodification of whole human beings or parts of them, that is, going back directly to the time when in our land there were encomiendas and indigenous people linked to them sold as slaves. Because that is what it is all about, to reimplant slavery, since legally that is what it means to give birth to a human being in order to fulfill a commercial contract. The same as ordering a car or a tailor-made suit, only with people.
Therefore, the sale of babies and the reproductive exploitation of women goes against human dignity and therefore should not be the object or reason for a contract under any circumstances. Human rights are unrenounceable in any situation, even more so when marginalization and misery are the breeding ground for these alleged waivers that are inadmissible in any legal system that pretends, minimally, to make people believe that it respects basic human rights.
On the other hand, it is neoliberal demagogy to wield an alleged and non-existent right of adults to buy a family, since the health and life of women is what is at stake. The desire to have babies is just that, a desire, not a right, and legislating so that the rich can buy babies is classist and sexist. This industry is not compatible with any notion of human rights, and we want this to be the occasion to point out the normalization of the objectification of women that scandalously rules our culture.
However, there does exist the right of children to have a family, a right enshrined in the Convention on the Rights of the Child, among other documents, to which Colombia is a party and which it would be failing to comply with from the very moment it gives the green light to the transaction of human beings.
Children have the right to have a family, a family that will raise them, feed them, educate them, protect them and love them. Therefore, in the adoption process, the only right that is taken into account is the child’s right to have a family and to his or her well-being. Hence the controls on the adopters, to ensure that the child will have a suitable family.
Of course, absolutely no control is made to those who acquire babies through a surrogate womb, putting the minors in the hands of people of whom the state knows literally nothing and who could perfectly well be dedicated to any purpose, so the Colombian state would be being totally negligent in the defense of the best interests of Colombian children.
In this sense, the surrogacy industry is extremely harmful not only to the fundamental rights of women but also to the children themselves, who are stripped of their humanity by being turned into an object of contract. It has been demonstrated that there is an immense need for sufficient skin-to-skin time and secure attachment with the mother in the first moments of extrauterine life; babies who are separated from their mother immediately after birth or even months after birth experience traumatic stress that marks them psychologically for life.
And these medically certain facts do not matter at all to the purchasers of babies, even if they harm those children, which is already a good advance proof of the type of people who consider it legitimate to acquire a human being and how much they care about their well-being, not at all. But it is normal, whoever acquires a baby as a consumer good treats it as such. Bad people.
On the other hand, maternal filiation is an inalienable right, like all human rights. The bond between a baby and the mother who gives birth to it is fundamental for the psychological development of the child. The fact that the State allows the renunciation makes it an accomplice of crimes against filiation, which are crimes against humanity, imprescriptible, for which it can always be prosecuted, since, even if the mother renounces, the holder of the right is the child and the guarantor should be the State, in this case the Colombian State.
The legislators and the Minister of Justice should ask themselves how traumatic it can be for a child to learn that he or she was bought as an object and that, to speak of what is happening in Ukraine, his or her mother was abandoned in a country at war. What prevents those who buy a child from exploiting it? If the criterion of filiation of daughters and sons begins to be the existence of a sufficient amount of money, what prevents trading with other members of the family or with one’s own or other people’s vital organs?
From feminist sectors and from criminal law, voices of criticism have been raised against this sentence, warning of the business interests behind the makeup of the reproductive exploitation industry and the pressure exerted to regulate the commodification of women’s bodies and their babies. Legalization of exploitation is never something to be expected from a democratic state.
Why does the government see high rates of exploitative misery as an economic opportunity and not the social and humanitarian disaster that it really is? From a feminist and human rights perspective the crisis of misery among women should be obvious. The urgent action that is needed is the creation of opportunities for a dignified life for the entire population, especially for women. Let us remember that the State is in charge of conceptualizing and pursuing the collective good, which should not be subordinated to the interests of the market and should revolve around human dignity. In this sense, a government with the flags it has waved should abolish exploitation, not legislate it.
We warn that legislating and normalizing these forms of exploitation takes us one step closer to the complete dehumanization of people in the interests of the market. If this government and in general the intelligentsia and the political class do not decide to defend the human dignity of women and children, in a short time we will see legalized industries as criminal and abject as organ trafficking, which, in reality, would be even less legally harmful than the legalization of surrogacy, since a liver, a kidney or a heart are not subjects of law, while exploited women and babies transacted as slaves are. They are Colombian citizens whom their State decides not to protect.
Let “human Colombia” not be the gateway to the neoliberal hell of savage capitalism. It cannot be that the slogan “adopt, don’t buy” in the case of the highest levels is so logical and reasonable for the government and public opinion, but does not apply to women and their children.
If the “power of life” and the “total peace” promoted by this government is built with women’s backs turned, violating basic human rights and turning us into reproducers at the disposal of the market, it will be a falsehood and a colossal hypocrisy and will mark the failure and waste of a unique opportunity in history to create a humane and equitable social order.
Alejandra Vera is National Representative in the Follow-up Committee for Law 1257 of 2008 and Director of Corporación Mujer, Denuncia y Muévete.
Victoria Argoty is Alternate National Representative in the Follow-up Committee for Law 1257 of 2008 and Representative for Colombia of Women’s Declaration International.
Nancy Gómez Ramos is Permanent Representative in the Follow-up Committee for Law 1257 of 2008 and Representative of Aliate – Alianza Nacional de Mujeres por la Defensa de los Derechos Humanos (National Alliance of Women for the Defense of Human Rights).