Surrogacy in Panama: Legal Situation
Despite the lack of legislation in Panama to regulate surrogacy, this reproductive method is still practiced in the country. However, it is not advisable for couples seeking a surrogate mother due to the legal uncertainty surrounding it. For both Panamanian citizens and foreign patients, regardless of their sexual orientation, adoption remains the only viable option. Although adoption is regulated, it is important to note that it is subject to numerous restrictions, which will be discussed further.
Actual legal situation
The Republic of Panama lacks a specific law governing or prohibiting surrogacy, resulting in a legal void. Additionally, there are no specific regulations in place for assisted reproduction. Consequently, many couples opt for these treatments without legal certainty. However, the Criminal Code, specifically Chapter II on Reproduction and Genetic Manipulation (Articles 145 to 147), stipulates that the following actions are punishable by imprisonment for a period of 2 to 10 years: 1. Fertilizing human eggs for purposes other than procreation. 2. Practicing assisted reproduction in a woman without her prior consent. 3. Using genetic engineering to create identical human beings through cloning or other forms of race selection. 4. Manipulating human genes for purposes other than eliminating or reducing a serious disease or birth defect. Despite these being the only provisions within the Panamanian legal framework regarding assisted human reproduction, the country does have reproductive centers where in vitro fertilization (IVF) or preimplantation genetic diagnosis (PGD) treatments can be conducted. Additionally, individuals can also turn to sperm banks or egg donation.
How is parentage determined?
In Panama, the principle Mater semper certa est ("The mother is always known") does not govern the filiation of children with respect to the mother, unlike in many other countries. According to the Family Code of Panama, as stated in Article 235 of Law No. 3 of 17 May 1994, filiation is defined as the relationship between a child and their parents. Motherhood refers to the relationship with the mother, while paternity refers to the relationship with the father. This definition acknowledges that filiation can be established through either consanguinity or adoption. Regardless of the method, the law treats all children equally, granting them the same rights and responsibilities. Furthermore, it is important to note that Panamanian law distinguishes maternity as the female role and paternity as the male role in the context of having children.
Explanation of 'maternity' and 'paternity'
Chapter II of the Panamanian Family Code outlines the definition of maternity and the process for its recognition. It states that maternity is presumed for all legal purposes when the following facts are proven: childbirth and the identity of the child. In cases of surrogacy, the surrogate woman is initially recognized as the mother of the baby since she has given birth. However, there are two ways to challenge motherhood: by proving false birth or by demonstrating that the supposed child has been replaced by the true one. The law also addresses the three parties who can claim or refute maternity: the child's own birth, the alleged father and mother, and the true parents of the child. This ensures that the corresponding family rights are conferred to the rightful individuals. Regarding paternity, which refers to the father's role, there are three types of recognition: voluntary, legal, and judicial. Voluntary recognition occurs when the father acknowledges his paternity during the marriage ceremony before a competent judge. Additionally, the father must have had children with the woman he is married to.
Adoption criteria
The Family Code of Panama recognizes both consanguineous and adoptive filiation of children. In Chapter I, adoption is defined as a legal institution for children who are not biologically related to their parents. One advantage of adoption in Panama is that it is permitted for same-sex couples, allowing them to become parents if they choose to start a family. Children under 18 years old in certain situations, such as having absent or unknown parents, being abandoned, or experiencing abuse, may be adopted and gain Panamanian nationality through naturalization. Adoptive parents must be married spouses with a stable home, and the age gap between the adoptive parents and the child cannot exceed 45 years. If an individual adoptive parent is married, the consent of their spouse is required to proceed with the adoption process.
Adoption by foreigners
Foreigners who are not domiciled in Panama can adopt Panamanian children, but they must meet certain requirements. These requirements include being married for at least 5 years and fulfilling the personal criteria set by their own country's laws. Moreover, adoption by foreigners will only be permitted if all local adoption options have been exhausted and if there are international agreements, conventions, treaties, or pacts between the country of origin and Panama. Considering the legality and recognition of child adoption in the absence of surrogacy laws, it is advisable to pursue adoption when natural childbirth is not possible.