Surrogacy versus Benefits by Maternity: A Comparative Study between Brazil, Chile and Mexico

Abstract

Assisted reproduction techniques are the result of technological advances in the area of reproductive medicine. Of all the existing techniques in this article, it analyzes surrogacy, popularly known as surrogacy, its particularities give life to three types of mothers, the mother who feeds the desire for procreation, the mother donor of gametes and the mother recipient of embryos, who gives birth. As a result of the above, a dead end is generated with respect to the social security benefit called maternity allowance, since it is very complex to determine who corresponds to this benefit, given the existence of three mothers. Consequently, the objective of this article focuses on determining the right of the mother (or father, single or homosexual) who conceives her child through surrogacy to receive the maternity wage in Brazil, Mexico and Chile. The methodology used is based on the comparative law method, also using legal hermeneutics and epistemology. As a main technique, the review of literature, legislation and jurisprudence is used, which allow us to conclude that the legal systems of Brazil, Chile and Mexico lack adequate regulations for the subject under study, leaving jurisprudence and doctrine to integrate normative gaps, using consequently the sources of law, especially analogy and general principles of law; in the case of Mexico, it should be noted that even jurisprudence is very precarious in this area. As a result of the above, we consider it necessary to correct this important legislative omission in order to guarantee the safeguarding of human rights and to give legal certainty to those involved in surrogacy, particularly with regard to their rights derived from maternity.