Surrogacy is expressly prohibited in Spain, but those who resort to this technique find a way to legitimize, through administrative or judicial means, the acquisition of a baby in other countries without, in practice, having consequences for them. Sentence after sentence, the Supreme Court recalls that it is a prohibited practice but also recognizes that the interest of minor children requires, for example, allowing their adoption in Spain, recognizing paternity or maternity benefits for the parents or leave even if the initial contract, The judges keep repeating, it is a “fraud on the law”. The latest resolution of the Supreme Court assimilates these cases to an international adoption when it allows their documents to reflect that Spain, and not the country in which they were conceived, is their place of birth.
The regulations that have regulated assisted reproduction techniques in Spain for 18 years clearly explain that “surrogacy” is prohibited in Spain. Any contract to use a woman as a surrogate mother, with or without money involved, is “null and void”. If a child is born through this method, the biological mother will continue to be the woman who gave birth to it. This makes it impossible for a Spanish clinic to offer this type of service, but it also leaves the door open for it to be carried out abroad and consolidated in Spain.
The data show that the ban has not been enough to end this practice. Between 2010 and 2020, more than 2,500 babies born from this practice were registered in Spain in countries where it is legal or where, at least, it is easier to carry out the procedure. “We guarantee success or we will refund your money” was one of the slogans of the agencies that took the client by the hand in countries such as Ukraine, Georgia or Mexico with contracts that even left the possibility of keeping the contract in the hands of the contractor. the pregnant woman alive even if she is brain dead, at least until the birth of the baby she paid for.
The law evolved slightly a year ago, when advertising by this type of agency was explicitly banned. At the international level, the European Union accepted that cases of coercion of women into becoming surrogate mothers be included in the anti-trafficking directive. But the different resolutions of the different Spanish courts, from the Supreme to the Constitutional, confirm how the course of accomplished facts is sufficient to legally legitimize a practice that is prohibited in Spain, generally because the judges must deal with a child who must have the same rights as anyone else.
Over the past decade, the Civil Chamber of the Supreme Court has been clear when speaking about surrogacy: “Mothers and children are treated as mere commodities,” it said two years ago in a ruling that considered the case of a woman who had obtained surrogacy. child through a Mexican company. The judges then denounced the “inhumane treatment” suffered by the biological mothers of the children, the impunity of the agencies and the “objectification” of the child, but ended up opening the door to the adoption of the child by the woman: “The satisfaction of the best interest of the minor entails the recognition of filiation to the commissioning mother to be obtained by adoption.
Maternity leave and benefits
By the time these types of surrogacy lawsuits reach the courts, the reality of the children is several steps ahead. They have been living with their families in Spain for several years, fully integrated into their environment, and the debate over the legality of the contract with the surrogacy agency has long been left aside. More than a decade ago, the courts heard the case of two families who had brought several babies to Spain from New Delhi and California and ended up recognizing maternity and paternity leave.
In 2016, the same Chamber recognized the right of clients to receive maternity benefits. In another case, a woman who had adopted her partner’s biological child through this method was also recognized for her right to maternity benefits. Just a few months ago, the Constitutional Court unanimously recognized a woman’s right to adopt the baby that her partner acquired through surrogacy. And in other cases, ordinary courts have upheld the validity of contracts with agencies dedicated to providing legal advice to those who wish to opt for this method, which is prohibited in Spain.
Using this technique is prohibited in Spain and, on paper, doing so abroad does not grant any validity, but in practice, families who use this technique in countries such as Ukraine end up obtaining the same rights in court, protected by law. best interests of the child. The latest example is a ruling by the Supreme Court that recognizes the right of a married couple to change their documents so that, officially, their place of birth is Spain and not kyiv. Assimilating their specific case – adopted by their biological father’s partner – to that of an international adoption in order to protect their privacy.
Currently, in Spain there is no bill or regulation to strengthen the regulation of surrogacy, after its express prohibition in 2006 and the modification of 2023 that also prohibits the advertising of agencies that offer this service in Spain. The case of Ana Obregón, who obtained a daughter in the United States with this method and using the biological material of her deceased son, has relaunched the political debate on this practice, with the PP opening itself to modifying the regulation if there was no economic compensation and the PSOE and we can reiterate that it is a “form of violence against women”.
