Following the birth of Ana Obregón’s daughter by surrogacy in Miami, Legálitas analyzes whether it is legal to have a baby through this assisted reproduction technique in Spain, whether it is possible to register the baby in the Civil Registry and what are the limits of the surrogate motherhood in our country.
Is surrogate motherhood legal in Spain?
In Spain, filiation by surrogate motherhood is not legal because it is considered that surrogate pregnancy contracts violate the fundamental rights of both the pregnant woman and the gestated child. Pursuant to article 10 of the Assisted Reproduction Law, they are contrary to our legal system and, therefore, they are considered null and void contracts.
Is it legal to carry out this process in another country and register the baby in Spain?
Legálitas indicates that, in the case of Ana Obregón, the registration of the baby in Spain as her daughter can only be carried out through a judicial decision issued in the country where the surrogate motherhood has been carried out or, failing that, through of the adoption procedure in Spain, the result of which would not be fruitful given the requirements established by our legislation to carry out the procedure, since Ana Obregón does not meet some of them, such as age.
What consequences for Ana Obregón to carry out this process?
You could encounter difficulties when registering the minor as your daughter since in Spain, since surrogacy is not legal, you cannot, without further ado, register a minor as a child who has been conceived by this method, unless you have a judicial resolution of the competent Court in which the parentage of the born is determined.
Until what age can you be a mother through a surrogate?
In Spain, as this method is not legal, we do not have these data. In this regard, Legálitas points out that, if we base ourselves on the articles of the Civil Code that regulate adoption, a possible way in Spain to register the minor, between the adopter and the adoptee, there must be a minimum age difference of 16 years. and maximum of 45 years and, in addition, the adopter must be over 25 years of age. Which means that in Spain Ana Obregón cannot adopt a newborn baby.
How is the registration in the Civil Registry of a baby gestated by a surrogate?
The registration of a baby in the Civil Registry in Spain that has been gestated by substitution is not viable, unless one of the members of the couple has provided genetic material and this is proven and, therefore, is registered as the child of one of the two members of the couple and that the other proceed to adopt the minor, or that a judicial resolution of the country of the competent Court be provided in which the filiation is determined. Said sentence will have to be approved by the judicial procedure of international law, unless the foreign judicial resolution had its origin in a procedure similar to a Spanish one of voluntary jurisdiction.
Can the parents withdraw custody of the child born through surrogacy?
The Supreme Court in its different resolutions, the most recent of which is dated March 31, 2022, has determined that surrogacy contracts are an illegal practice in Spain and, therefore, are null and void, therefore that the impossibility of registering the minor in the Civil Registry as the daughter of Ana Obregón would mean that she would have to take advantage of other mechanisms so that the minor would remain with her, such as, for example, foster care or adoption. These mechanisms must always be adopted in the interest of the minor.