Society What the Court says about surrogacy in Spain: prohibited but can be validated with judicial intervention

Surrogacy is a form of "violence against women", according to Spanish law

Society What the Court says about surrogacy in Spain: prohibited but can be validated with judicial intervention

Surrogacy is a form of "violence against women", according to Spanish law. But a violence that can be avoided with a judicial intervention, either abroad or, if it has not been possible there, in Spain. The number of 163 registrations of children conceived this way last year in Spanish consulates reveals that, despite the literalness of the law and the harshness also used by the Supreme Court, the benefit of the minor ends up being imposed on some gestation contracts that are irremediably null.

The situation of surrogacy in Spain is marked by the two instructions of the General Directorate of Registries and Notaries (today of Legal Security and Public Faith) and by two Supreme Court rulings.

The balance is as follows: in countries where there is judicial control of the process that ends in an acknowledgment of filiation, access to the registry of the Spanish consulate is almost automatic. On the other hand, in countries where the matter is handled only by administrative means, the consular records say no and subsequent judicial intervention in Spain is necessary to establish paternity. In the most common case, the father is recognized after a genetic test, while the non-pregnant woman must follow an adoption process endorsed by a judge that gives her access to the civil registry as a mother.

In the first block is the USA. Mecca -and the most expensive place for surrogacy- is California. 100% of the 42 requests at the Los Angeles consulate were answered in 2022. Also in Florida, where Ana Obregón has obtained her baby, success is almost assured, with access to the consular registry that avoids procedures in Spain. Last year there were 10 applications in Miami and all 10 were successful.

In the other block is, for example, Ukraine. The administrative procedure followed there is not a sufficient guarantee to recognize filiation to the non-pregnant mother. Ukraine has been a popular destination for these cases, although the war slowed the cases. In 2022 there were only four applications, none of which could access the kyiv registry. In Turkey, the administrative process is not enough either: 42 refusals to the 42 requests.

There is also the option of avoiding the consulates - Eastern countries with access by roads without border controls - and request registration directly in Spain. The process is then that of adoption.

"There is a lot of casuistry depending on the country, or even within each country, as is the case in the United States," explains Diego Calvo, an expert lawyer in surrogacy. The lawyer intervened in the case with which a year ago the Supreme Court marked the itinerary that must be followed.

The unanimous sentence was very harsh with surrogacy, "which entails damage to the best interest of the child and exploitation of the woman that are unacceptable." In practice, he revoked a ruling that had endorsed fast-track registration, taking into account the reality of the family situation, in which her mother had already worked as such for a long time. The Supreme Court established that the non-pregnant mother, to be recognized as such, had to go through the adoption process.

According to the Court, the rights of the child and the surrogate mother "would be seriously damaged if the actions of intermediation agencies in surrogate gestation were facilitated because they could ensure their potential clients almost automatic recognition in Spain of the resulting filiation." of the surrogacy contract, despite the violation of the rights of the surrogate mothers and of the children themselves, treated as simple merchandise, and without even verifying the suitability of the principals to be recognized as holders of parental authority over the child» .

REGISTRATIONS. The children by surrogacy registered in the Spanish consulates in 2022 were 163.

USA. Of the 163, 138 registered in the US: 42 in Los Angeles, 36 in San Francisco, 20 in Houston, 19 in Chicago, 10 in Miami, 4 in New York, 4 in Washington and 3 in Boston.

REQUESTS. In 2022 there were 249 applications for the registration of children by surrogacy: 103 from same-sex couples, 89 from different sexes and 57 single-parents.

According to the criteria of The Trust Project