A gestação de substituição e a problemática da apatridia no sistema interamericano de proteção aos direitos humanos

Abstract

Assisted reproductive techniques, such as artificial insemination and in vitro fertilization, have revolutionized family formation around the world, allowing couples and individuals with difficulty conceiving to fulfill their dream of having biological children. However, this practice raises ethical and legal questions, especially in relation to surrogacy. Surrogacy, although popular among heterosexual and homosexual couples, faces an international regulatory gap. This creates legal uncertainties, especially when addressed at a transnational level, where legislation can vary significantly between countries. Statelessness is a critical issue associated with surrogacy, as it involves the risk of a child being born without a nationality due to the lack of legal recognition of the practice associated with the different forms of attribution of nationality that each State adopts. Given this scenario, the following question arises: does the Inter-American System for the Protection of Human Rights ensure protection against statelessness resulting from surrogacy? The hypothesis is based on the idea that the SIPDH is concerned with statelessness resulting from surrogacy and provides protection for this phenomenon through its bodies, rules and case law. Regarding the general objective, the aim is to analyze the protection against statelessness resulting from surrogacy in the InterAmerican System for the Protection of Human Rights, so that the specific objectives are: to analyze the operationalization of international surrogacy and its legal protection in international law; to understand statelessness in the international field, its regulations, implications and consequences; to understand the problems of statelessness resulting from surrogacy; and to analyze the phenomenon of statelessness resulting from surrogacy within the scope of the SIPDH and its perspectives for addressing it and guaranteeing human rights in domestic law. As for methodological resources, the nature of the research is theoretical, using the hypothetical-deductive method, with an exploratory objective, in the technical procedure, bibliographic and documentary research is chosen, with the study of international normative devices and analysis of case law of the Inter-American Court of Human Rights. The study is justified by the global growth in transnational surrogacy, associated with the diversity of regulations on the criteria for granting and losing nationality, as well as the lack of regulation of the right to nationality in cases of surrogacy. The results point to protection against statelessness and guarantee of the right to nationality within the scope of the SIPDH, although there is no specific regulation for statelessness resulting from surrogacy, largely because the domestic legislation of countries adopts criteria and legislative solutions to guarantee the right to nationality and eradicate this problem in their legal systems.