30 May 2017, Alberto Perez Cedillo

Surrogacy in Spain – far from recognition

In Spain, surrogacy is forbidden under article 10.1 of the Law 14/2006 of 26 May on human assisted reproduction techniques, which states that all surrogacy agreements are null and void.

Due to this regulation, many Spanish residents are traveling to countries where this technique is legal. However, problems arise when parents want to register their children at the Spanish Civil Registry.

The Spanish Constitution recognises the right to an effective judicial protection, which must also ensure the interests and rights resulting from international relations. This protection can be provided by “declaration” (with a declaration made by the jurisdictional authority) or by “recognition” (the resolution of a foreign court is certified by the jurisdictional Spanish authorities).

In 2008, a same sex married couple had two children in California through surrogacy. The birth certificates showed both of them as parents of the children, as declared by a judgement from the California Superior Court that recognised their filiation. However, when they tried to register the children at the consular civil registry at the Spanish Consulate they discovered it was not possible because under Spanish law surrogacy is forbidden. The parents decided to appeal the decision of the consular registry to the Directorate General of Registries and Notaries (DGRN).

The DGRN confirmed the registration of the children in its resolution of 18 February 2009. In that resolution it was also expressed that the registration of children born abroad is to be made by declaration or by presenting a foreign registry certification that shows the birth and the filiation. In this case, the DGRN considered that according to the Regulation of the Civil Registry, the birth certificate was indeed a decision of a foreign public authority that showed the birth and the filiation. It was also stated that this was a matter of validity of foreign decisions and not a matter of applicable law. This did not exclude a control of legality of foreign decisions, however the foreign authority could not be required to reach the same decision as the Spanish authority would have reached.

This resolution was however revoked by the judgements of the Court of First Instance of 15 September 2010 and the Provincial Court of Valencia of 23 November 2011.

Following the decision of the Provincial Court of Valencia, the parents filed a cassation appeal, which was in turn dismissed by the Supreme Court in its Judgement 835/2013 of 6 February 2014. The judgment confirmed the cancellation of the children’s birth registration carried out at the consular registry, which recognised that the children were children of the defendants at the filiation field. The decision of the authority in California to assign the condition of parents to the couple who had used a surrogate mother was considered contrary to international public policy of Spain due to its incompatibility with the Spanish Law on human assisted reproduction techniques. The Court also considered that the child’s welfare cannot be based on the existence of a surrogacy agreement and filiation in favour of the intentional parents contained in the legislation from California. Instead, if the facts were true, it should come from the rupture of all bonds between the children and the mother who gave birth to them, the current existence of a family unit made up of the intentional parents and the children, and the biological paternity of one of them in connection with the child.