Legal Aspects Of Surrogacy
Surrogacy is often understood as ‘on demand’ motherhood. However, from the point of view of common sense and also from the legal one, the expression refers to a broader concept.
There is, on the one hand, surrogacy proper and, on the other, pseudo-surrogacy, which refers to in vitro fertilization , that is, embryo implantation and many other methods of reproduction.
The term ‘reproductive motherhood’ is often used to refer globally to these concepts. The common point of all of them, from the legal point of view, is the gestation of a child genetically ‘alien’ to the mother.
Next, we will mainly talk about surrogacy, which refers to the situation in which a woman or a couple entrusts another woman with the gestation of a child. It is what is known as ‘surrogate belly’. Let’s see some legal aspects.
Is surrogacy or commissioned pregnancy allowed in Spain?
The legal aspects of surrogacy are one of the main reasons for ‘fertility tourism’. In practice, many couples who have difficulty conceiving and have sometimes tried many methods of assisted fertilization choose to use a surrogate.
These couples who opt for surrogacy are faced with the problem that this practice is illegal in their countries of residence, so they must travel abroad to do so. In Spain, despite the fact that the legislation on assisted reproduction is one of the most advanced in Europe, pregnancy on request is not legally allowed.
Article 10 of Law 14/2006 of May 26 on Assisted Human Reproduction Techniques states this. According to this article, any contract in which pregnancy is planned on behalf of a woman, with or without payment in between, and it is established that the latter waives her right of maternal affiliation in favor of the contractor, is void.
The rule means that the baby that will be born from that pregnancy is legally the son of the woman who carries it. This is valid in all cases, even if there is a family relationship between the parties. In case the gametes to fertilize the mother have been provided by the interested couple, the legal situation remains the same.
In the latter case, the only difference is that the man will be legally considered the biological father of the child. The surrogate mother could even demand that she assume her obligations as such. But the wife of the couple will not have any rights or obligations.
Reproductive tourism
Faced with this legal situation, couples who have decided to opt for this method often resort to what has been called ‘reproductive tourism’. To do this, they must choose countries where this technique is legal and travel there to finalize the deal.
These countries include some states of the United States such as California, Chicago, Boston and New York, and countries such as Canada, India, Ukraine, Russia and Kazakhstan. California is one of the most flexible places, making it one of the preferred destinations for fertility tourism. The only problem is the cost, which is much higher than in other countries.
In Europe there are two countries where surrogacy is legal, although with some restrictions: they are England and Greece. Before choosing the country, it is important to take into account that the procedure is not the same in all.
Legal status of children born by surrogacy
A significant number of Spanish couples have resorted to the technique of maternity by request abroad in recent years. However, when returning to Spain, things have not always been entirely easy.
Until 2010, the Civil Registry did not allow the registration of babies born through this surrogacy technique. The child was left unprotected and could not be registered, so he could not access social security or free public education.
However, in October 2010 a law was approved that allows the registration of children of Spanish couples or single parents, born abroad by the surrogacy method.
The main requirement for this registration is that a competent court of the child’s country of origin indicates through a judicial resolution that the minor is legally the child of the couple.
