Surrogacy, a technique prohibited in Spain but viable in practice through other countries
The image of the Spanish actress Ana Obregón leaving a Florida hospital in a wheelchair with a baby in her arms at 68 years of age has reactivated a debate that has been open for years in Spain: the ethical and legal limits of surrogacy. Spanish legislation prohibits this technique of assisted reproduction, by which a person or a couple hires a woman to become pregnant and give up the child. in favor of them. But there are legal loopholes that allow them to incorporate it in Spain as their child if they arrive with a judicial sentence from any of the foreign countries where surrogacy is recognized.
The assisted reproductive techniques act of 2006 makes it categorically clear that any contract in which gestation by surrogacy is agreed upon, “with or without price”, will be “null and void” in Spain. “The filiation of children born by surrogacy will be determined by the birth,” reads Article 10 of the regulation. In addition, in the recently approved reform of the abortion law agencies are prohibited from advertising this technique, which is now classified as a form of violence against women.
It is not possible, therefore, and under no circumstances, to initiate a surrogacy process in Spain, but there are alternative formulas that allow to obtain the filiation of a child gestated abroad. The European Court of Human Rights (ECHR) argued in a 2019 judgment that the right to respect for the child’s privacy and identity must take precedence over any legal system, which is understood to include the filiation between the child born by surrogacy and the woman who uses this technique.
This ruling, along with a instruction on the registry regime of the
filiation of those born through surrogacy of 2010 – in which it also urges to safeguard the best interests of the minor and of the women who “renounce their rights as mothers” – is what most people who opt for this legal way in Spain abide by.
“Spaniards go to other countries and they get a sentence from a judge that says that this baby is their child, and not the child of the woman who has gestated it. So, the Government now contrary, has to submit to the reality that the ECtHR has ruled that that child has a right to identity that is above the law. They cannot say that this boy or girl is not who the American judges, for example, say he or she is,” legal sources explain to 20minutos.
More than 120,000 euros for a child in the USA.
This has been the case of Obregón, who has carried out the whole process in Florida, in the United States, a country where surrogacy is regulated in several states with prices that can exceed 120,000 euros.. “If (Ana Obregón) goes tomorrow to the Spanish consulate, with a sentence from a U.S. court that proves that the baby is hers, they will ask her for all the data and so on, they will check who has gestated the baby, but in the end they will determine that it is her child also in Spain,” the aforementioned sources detail.
This is stated in Article 113 of the Civil Code, which specifies that filiation in a Spanish civil registry may be accredited “by the. document or judgment which legally determines it, by the presumption of matrimonial paternity and, in the absence of the above means, by possession of the state.”
In the end, they add, the baby will be recognized, not by rights of the Spanish actress, but by those of the newborn girl.. The registration will therefore be automatic; there will be no need to adopt the baby or carry out any other procedure in Spain; and the baby will have dual nationality (U.S. and Spanish). “It depends on how long the consulate takes, but he will come with a U.S. passport in less than a month. The Spanish passport may take some time, it is automatic, but it may take six months until he gets it,” they say.
There is other countries, such as Mexico, where the procedures are more complicated. According to the legal experts consulted by this newspaper, the Spanish consulates are having problems when it comes to recognizing the judicial sentences of the Mexican courts that determine that the child born through surrogacy is the child, on paper, of the mother who has paid for it. “This baby would probably have to be regulated in Spain through adoption”, they specify.
These cases usually occur when neither of the two interested parties have contributed genetic material (such as sperm) in the gestation of the child. In such cases, and without having a judgment from the foreign country, the Supreme Court has already ruled that adoption, and not filiation, must be chosen. The same applies if one of the parties has provided genetic material (he would become the father directly) and the other not, who would have to, again, adopt the baby.
A $13 billion market.
In 2022 alone, Spanish consulates abroad made up to 162 registrations of babies through surrogacy, as diplomatic sources have informed Europa Press; although the associations that advise families who resort to surrogacy calculate that more than 1,000 babies a year would arrive in Spain through this technique.
Ehe surrogacy market generated around $13 billion in 2022.and by 2032 it is estimated to have grown by 24.5%, to $129 billion, according to The Global Surrogacy Market Report. The price range varies according to the country, with the United States being the most expensive, with prices that can reach over 120,000 euros. In Canada, the budget ranges from 50,000 to 90,000 euros; and in Eastern European countries (Ukraine or Georgia) the price for a surrogate womb is around 30,000-40,000 euros.
The Government, against
The news, which has transcended from the social to the political spectrum, has brought to light the positions of the different parties on surrogacy. The Government’s response has been categorical: absolute repulse for a practice that, they maintain, “is a form of exploitation of women”.. This was expressed this Wednesday by the Minister of Finance, María Jesús Montero, after making it clear that, although it is necessary to analyze “each specific case”, the PSOE is not in favor of surrogacy.
Also the Minister of Equality, Irene Montero, has recalled that this is an illegal technique in Spain. Montero, who tried unsuccessfully for the reform of the abortion law to pursue contracts on surrogacy in third countries, has asked that “don’t forget about the women behind”, nor that surrogacy hides “a poverty discrimination bias”.
For the spokeswoman of the Executive, Isabel Rodriguez, it is a question of. “one more form of slavery”. “There are things that cannot be bought and cannot be sold. The health and physical integrity of women cannot be bought or sold, they are human rights that we protect and preserve,” Rodriguez stressed.
The PP is open to regulate it if it is “altruistic.”
Against all odds, and against the positions they have been defending in recent years, the Popular Party has opened up, as a result of all the controversy, to regulate surrogacy in Spain. That is, as long as there is no “mercantilization”, that is to say, that it is an “altruistic” process by means of which the gestational mother does not receive any direct payment for giving birth to the baby, beyond those necessary to defray expenses.
But this is not a new idea. Citizens has been demanding for some time in Parliament a regulation of surrogacy. It has been, in fact, until this Tuesday, one of the only parliamentary groups that has defended this assisted reproduction technique. In the new abortion law, they even presented a parallel initiative -which the PP opposed- to regulate surrogacy. “altruistic surrogacy”, implementing a registry of “pregnant women”. and a contract with “surrogate parents”.
According to research published in the Harvard University Journal of Law and Public Policy, it is estimated that. less than 2% of all surrogacy arrangements worldwide are altruistic.