La filiación por voluntad procreacional : propuesta de un marco regulatorio para la maternidad subrogada en Ecuador.

Abstract

In our country, the evolution of family structures and advances in assisted human reproduction techniques have outpaced the legal system’s ability to respond. Surrogacy, a growing social reality, currently unfolds within a legal vacuum that creates profound uncertainty and lack of protection for the parties involved: the gestational carrier, the intended parents, and, most importantly, the child. Ecuadorian law does not clearly establish who should be legally recognized as the parents in cases where a woman carries a child on behalf of another person or couple. This has led to multiple legal conflicts regarding parentage, the rights of the newborn, and the legal certainty of those involved. This situation reveals a legal void that must be addressed urgently. This research adopts a legal approach, intentionally excluding social or moral aspects, and focuses on analyzing Ecuador’s constitutional principles, such as the best interests of the child, the right to form a family, equality before the law, and reproductive autonomy. A comparative study is conducted with countries that have already legislated on surrogacy, identifying regulatory models that could be adapted to the Ecuadorian context. Additionally, relevant judicial rulings—both domestic and international—are examined to understand how this issue has been addressed in practice. The study proposes a legal reform that would allow the recognition of parentage through procreational intent in surrogacy cases. In other words, it suggests that legal parenthood be granted to the individual(s) who have freely and consciously expressed the desire to have a child through this method. This proposal aims to provide legal certainty to all parties involved and to protect the rights of the child in accordance with the Ecuadorian Constitution and international human rights instruments.