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Can there be three biological parents instead of two?

We all have expressions like these in mind: «You’ve only got one mother» and «mater seper certa est» [the mother is always certain], but with recent advances in assisted reproduction, these aphorisms are no longer so true.

In fact, according to Spanish law, maternity is determined by gestation, so the gestating mother is the mother, but what happens when this woman and the biological mother are not the same person?

  1. How the question is posed in Spain

In the case of a couple composed of two women, where one of them gestates the embryo from the egg of the other and sperm from a donor, which of them would be the mother? We can’t deny the status of mother to the one contributing the DNA, the one contributing the egg.

This consideration was taken into account in Article 7.3 of the Assisted Reproduction Act, which allows the filiation of two women in these circumstances:

«When a woman is married to, and not legally or in fact separated from, another women, the latter may declare, in accordance with the provisions of the Civil Registry Act, that she agrees for a determination in her favour of the filiation in regard to the child born from her spouse.»

Therefore, two women may be biological mothers, and therefore both may be recognized as such.

It is not the case here, as it is with men, that one of them may adopt the child of the other and hence become a part by adoption, but rather, in the case of two women, it is a true filiation.

But what happens to the father?

So far no problems have arisen from these filiations since normally the interested parties go to a sperm bank and use sperm from an anonymous donor, but what if the donor wasn’t anonymous?

And what if he wanted to be the father and the mothers consented to such a determination of filiation?

In this case, all of them have a right to paternity: the gestating mother by law and the biological parents due to their DNA. Would it be possible to register three people with the Civil Registry as the minor’s parents?

At the moment, such a registration appears to be nearly impossible in Spain, but it also seemed to be impossible a few years ago for a transsexual to marry someone of their same biological sex or for people of the same sex to get married.

If the matter arose, it would be difficult to find sufficient arguments to deny the filiation of the three people in these circumstances, because who would lose the right?

The last person to request it, or would DNA prevail over gestation or vice versa?

We must admit that these are not easy questions to answer.

  1. Recognition of triple filiations formed abroad

The situation could also arise about recognising these family groups that have been formed in some country where they are already legal.

For the time being, there isn’t any country that recognises them, but there are likely to be some in the future among the countries pioneering these questions, such as The Netherlands or Belgium.

So, if it was the case that one of the mothers was Spanish, and this triple filiation to a child was recognised in The Netherlands, could that decision be recognised in Spain?

In principle it would be impossible, since it is easy to conclude that triple filiation goes against the Spanish legal policy, but if it was not recognised, this would seem to go against two of our essential legal principles: the principle of equality and the principle that requires that the best interests of the child be protected in decisions regarding minors.

In regard to the principle of equality, if the filiation of the minors in regard to the three parents is not respected, which of the three are we to choose?

The child of a Spaniard, as a Spaniard, has the right to be registered with the Civil Registry.

How is this birth to be registered, then?

Are we to discriminate against one of the foreign progenitors, against one of the biological ones, or against the gestating mother?

If we choose the Spanish citizen due to her nationality, we are discriminating against one of the other two for that reason, and if we choose based on reproductive criteria, we are also discriminating against one of them, as would be the case if we do so based on sex.

In the same way, if we do not accept recognition of this triple filiation that has already been validly constituted abroad, we would be negatively affecting the best interest of the minor to have the filiation of their three parents and we would propitiate a situation that is prejudicial to the minor, who would have a valid filiation with three parents, for example, in The Netherlands, and a legal limbo in Spain, due to this filiation not being recognised.

There’s no doubt that there’s a debate already set up here.

Such cases have not yet come before our courts, but it is only a question of time for this to occur, so the legislators had better be prepared to regulate these new situations that reality is posing for us and in regards to which the Law cannot stand aside.

Flora Calvo

Flora Calvo es licenciada y doctora en Derecho por la Universidad Complutense de Madrid y diplomada en Derecho francés por la Universidad de París XI Jean Monnet Sceaux. En la actualidad es miembro del despacho Winkels Abogados y profesora del área de Derecho internacional privado de la Universidad Rey Juan Carlos de Madrid.

Calvo colabora en multitud de publicaciones y cuenta con numerosos artículos publicados en revistas como ‘La Ley’, ‘Otrosí’, ‘Sepín‘ e ‘Iuris’.

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