Surrogacy in Spain. Summary of legislation in the field of surrogacy

The legal regulation of surrogacy in Spain is considered from two aspects. On the one hand, a number of laws and regulations explicitly point out the illegality of this procedure in Spain. On the other hand, there is an integration of Spanish regulations and court decisions in the direction of recognizing children born through surrogacy in Spain, but through a legally defined legal procedure.

Let us consider these approaches. Surrogacy in Spain is not legally permitted and is recognized as illegal because, as the European Parliament determined in 2015, surrogacy «undermines the human dignity of the woman because her body and its reproductive functions are used as a commodity.»

This position of the European Parliament is reflected in a number of Spanish laws and regulations. The first mention of surrogacy is contained in the Law of November 22, 1988 «On Artificial Insemination Methods» and confirmed by Law No. 14 of May 26, 2006. «On Assisted Human Reproduction Methods», which establishes the prohibition of surrogacy.

In particular, Article 10 of Law 14/2006 of May 26, 2006 states that.

«1. The contract by which consent to conception, with or without payment, is given by a woman who renounces maternal parentage in favor of the contracting party or a third person is null and void.

2. The parentage of children born as a result of surrogacy shall be determined by birth.

3. In accordance with the general rules, actions to establish paternity may be brought by the biological father.»

Under this provision, surrogacy contracts are null and void, regardless of whether a woman receives remuneration for providing her body to carry a child and for abandoning motherhood. The above does not mean, of course, that the child has no de jure parents. According to Spanish law, the mother will be the woman who gives birth to the child, and the father will be the biological father, who will be identified as such in a court decision. The second parent will have to resort to the adoption procedure.

Article 221 of the Spanish Penal Code also establishes that persons who, through economic compensation, transfer a child to another person without a parental relationship, avoiding the legal procedures of guardianship, placement or adoption, in order to establish a similar link to paternity, will be punished by imprisonment of one to five years and the inability to exercise parental rights, guardianship or custody for a period of four to ten years (part 1), the same sanction being applied to the person who receives the child as a parent. It is noteworthy that no criminal cases have been filed to date.

In addition, the situation of surrogacy in Spain is regulated by relevant decrees (Decree of November 14, 1958, approving the Regulations of the Civil Registry Act), Supreme Court decisions and two instructions of the Directorate General of Registries and Notaries (today Legal Security and Public Faith):  Instruction of the General Directorate of Registries and Notaries of October 5, 2010 «On the Procedure for the Registration of the Kinship of Persons Born as a Result of Surrogacy», Instruction of the General Directorate of Registries and Notaries of February 18, 2019 «On Updating the Regime for the Registration of the Kinship of Persons Born as a Result of Surrogacy».

Currently, there are many inconsistencies and provisions in Spanish law that do not meet the practical needs of surrogacy. Therefore, if a Spanish couple wishes to perform surrogacy, they are forced to seek the service in another country’s jurisdiction. We emphasize that the surrogate mother is never an egg donor, i.e. she does not give her genetic material to the child. This factor subsequently allows for the legal transfer of the child to the genetic parents. However, after the birth of the child, legally the kinship of the child and the biological parents is not recognized in Spain. This creates additional difficulties with the procedure of legitimization of the rights of the parents, since the child is usually registered in the place of birth and not in Spain.

In Spain it is currently only possible to register the child with the father, who is usually also the biological parent, and the mother must apply for adoption in Spain after the surrogate mother has relinquished the child.

According to the Instruction of the Directorate General of Registries and Notaries of October 5, 2010, «On the procedure for registering the parentage of persons born as a result of surrogacy», the birth and paternity of a minor born in a foreign country through surrogacy may be registered in the Spanish Civil Registry under the following conditions:

— Together with the application for registration of the minor’s birth, a court decision of the competent court determining the paternity of the child must be submitted.

— In addition, the requirements set forth in this Instruction on foreign judgments must be complied with. In this case, unless an international convention is applicable, the foreign judgment must be subject to exequatur.

Exequatur is a set of rules according to which the legal system of a State verifies the compliance of a judgment rendered by a court of another State with the requirements allowing its recognition and homologation.

Thus, in order to proceed with birth registration, the application for registration and the court order terminating the aforementioned exequatur procedure must be submitted to the Spanish Civil Registry.

It is possible to register in the Spanish Civil Registry without submitting the exequatur of a foreign judgment, provided that the foreign judgment arose in a procedure similar to the Spanish voluntary jurisdiction procedure.

In these cases, the person in charge of the civil registry will check, as a preliminary requirement for registration, whether the judgment can be recognized in Spain.

The person in charge of the Spanish civil registry will carry out an additional check of the foreign judgment and verify:

• the correctness and formal validity of the foreign judgment and other documents submitted;
• whether the court of the country of birth bases its international judicial jurisdiction on criteria equivalent to those provided for in Spanish law;
• whether the procedural rights of the parties, in particular the surrogate mother, are guaranteed;
• whether the interests of the minor and the rights of the surrogate mother have not been violated. In particular, it must be ascertained that the latter’s consent was freely and voluntarily obtained without error, fraud or violence, and that she has sufficient natural capacity;
• that the judgment is final and that the consents in question are irrevocable or, if they are subject to a revocability period under applicable foreign law, that period has expired and the person who recognized the right of revocation has not exercised it.

It is not possible to register the birth and descent of a minor by certifying a foreign registration or a mere declaration of registration of the child or of the affiliation of a future child in favor of a contracting party or a third party.

In connection with the above, it is evident that the criteria of the Directorate General of Legal Security and Public Faith (part of the Ministry of Justice)and the Spanish Supreme Court are different.

In the first case, if the establishment of kinship in favor of the principal is based on a judicial decision issued by a competent foreign court, such kinship may be recognized and registered in Spain (Instruction of October 5, 2010, ratified by the Instruction of February 18, 2019).

On the other hand, according to the Spanish Supreme Court, surrogacy is contrary to public order because it constitutes an attack on the dignity of the child (who is objectified and turned into a business object, being deprived of his or her family status) and the gestational mother (whose reproductive functions are commercialized and whose status, often out of economic necessity, is exploited by third parties), resulting in a filiation in favor of the person who entered into the surrogacy contract that cannot be registered

This conflict will lead to the application of article 10 of Law 14/2006, referred to earlier: the woman who has given birth to a child will be considered a mother even if she does not wish to be one.

The same principle applies when, at the end of the surrogacy process (after the delivery), the parents are faced with the problem that their child does not have the nationality and passport of any country. Consequently, the parents and the child cannot travel to Spain until this problem is resolved. On the other hand, the Spanish Embassy asks for:

1) a document recognizing parental rights from the genetic (legal) father;

2) documents of relinquishment of the child from the surrogate mother although this has already been done in the country of «surrogacy» before signing the surrogacy contract at the notary or after the birth of the child;

3) total disregard of the child’s genetic mother, whether it was a program with egg donation or not, due to the fact that she did not give birth to the child.

The Spanish Embassy will only accept legal birth certificates that record the surrogate mother as the legal mother. the genetic father is recorded as the legal father and the genetic mother is not listed anywhere. After the family returns home to Spain, the genetic mother will have to adopt her own child.

This provision comes from the «protection of the rights of the child» provided for in Article 7 of the Convention on the Rights of the Child of November 20, 1989, which states that a child must be registered immediately after birth and has the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know his or her parents. The problem is that this child will surely know its real (genetic) parents, since they are already family and this child is already registered in another country. But at the same time Spain, contrary to the Convention Abolishing Requirements for the Legalization of Foreign Public Documents, concluded on October 5, 1961 in The Hague, of which it is a member, does not recognize the other country’s legal documents on surrogacy, recognizing all other documents. This creates a number of legal difficulties for the biological parents of a child born through surrogacy.

The use of other reproductive methods of infertility treatment in Spain is carried out on quite legal grounds. For example, anonymous egg and sperm donation is allowed, including for monetary reward. Royal Decree 9/2014 of July 4 allows «to receive compensation payments from the institution responsible for the collection of eggs, covering the costs and inconveniences associated with the collection, in the form of benefits, compensation for lost economic income»).

Thus, single women, opposite-sex spouses or couples, and same-sex couples can benefit from assisted reproduction. And more importantly, can resort to the methods not only because of fertility problems, but also for life planning, such as choosing one of the parents or delaying maternity with the patient’s own gametes using the ovocyte freezing technique.

This issue is further explored in same-sex couples, as the type of relationship of the couple determines the legal protection granted and the options available for conception. For example, if there is a same-sex couple, both women, Spanish law allows for a process of shared biological maternity. This method is called ROPA (receiving oocytes from the partner) or Reciprocal IVF — provided for in Law 14/2006. During this process, one of the women, the genetic mother, provides the oocyte (genetic material) and the other, the biological mother, carries the pregnancy (through her uterus) — which is essentially the same process as conventional surrogacy.

Thus, same-sex female couples prove that surrogacy in a certain way is in fact regulated and legal, which is contrary to Article 10, paragraph 1 of Law 14/2006.

In addition, unlike female partners, same-sex couples (both men) are not protected by the Law on Assisted Human Reproduction Techniques. Consequently, in order to perform surrogacy, men will have to transfer their surrogacy to another country and their only route to legal parenthood will be adoption, as provided for in Law 13/2005, which legalized same-sex marriage and gave same-sex couples (both men) access to virtually all marital rights that heterosexual couples have.

However, this creates further uncertainty for the child as, the adoption application is not guaranteed and may be rejected if the prospective couple’s home is deemed ‘unsuitable’. Thus, although Article 14 of the Spanish Constitution and Article 21 of the EU Charter of Fundamental Rights apply to combat discrimination, adoption agencies can be implicitly biased and reject an application on alternative grounds, putting both child and parents at a severe disadvantage.

We believe that it is necessary to amend the surrogacy legislation in Spain, as in its current form the prohibition of surrogacy is detrimental to the majority of families and discriminates against the different types of relationships of those who wish to benefit from surrogacy. We would like to emphasize that, although the Spanish Supreme Court considers surrogacy to be an exploitative practice, it believes that the welfare of minors comes first, even in cases where there is no genetic link. This is also the case law of the European Court of Human Rights, which asks to guarantee some recognition by alternative legal means for children born through surrogacy, so as not to leave minors in a legal limbo. Therefore, there is hope for positive changes in Spanish legislation on surrogacy.