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Surrogacy: an unresolved matter

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Yolanda Dutrey

3 April 2016

The parliamentary group Ciudadanos recently presented a non-legislative motion on surrogacy in the Madrid Assembly with which it opened, or rather, revived an issue that has been generating heated controversy for some time in Spain.

This issue provokes an irreconcilable division of opinion

Surrogacy is the practice whereby a woman becomes pregnant with the intention of giving birth to a child for other parents, in doing so waiving any right to the baby. It is normally formalised through a contract and can be free or in exchange for financial payment.

The interests at stake are so significant that they are often difficult to reconcile: from those who see the concept as a means whereby people who are unable to have children have the opportunity through assisted reproduction measures, to those who believe that the practice promotes female exploitation, commodifies children, facilitates illegal enrichment for intermediaries and, ultimately, involves a breach of fundamental rights worthy of protection.

In many legal systems, such as in Spain, the concept is prohibited in light of the belief it breaches State public policy. Art 10.1 of Law 14/2006 of 26 May on human assisted reproduction techniques states that «any contract whereby surrogacy is agreed, with or without a price, by a women who gives up maternal parentage in favour of the contracting party or third party will be declared null and void».

In many other countries, however, the practice is legally allowed and is vigorously expanding, such as in Greece, USA or Mexico.

In view of the inability to perform these births in Spain, partners are seeking the service in other countries where they are legal

The permission in other countries’ legal frameworks, in conjunction with advanced techniques and the globalised world to which we belong, converts the Spanish regulation into an unsuccessful attempt to create barriers to an easily accessible field. In fact, in response to the ban by Spanish legislation, partners in Spain who wish to have children using this technique seek assistance with surrogacy in other countries where it is allowed. Their children are there waiting, they become the only parents (sometimes one of the two is a biological parent) and they return to their country of origin with the child, since the birth mother (who is often not the biological mother as the eggs are not hers) permanently renounces her connection to and disappears from the child’s life. At this stage, the child needs and is entitled to protection from Spanish authorities and to the immediate provision of and compliance with all corresponding rights. The interests of the child become the priority concern.

CASES

These cases require regulation as the child cannot remain in a legal limbo for a long time.

In Spain, the Directorate General of Registers and Notaries (DGRN) Directive of 5 October 2010 on the registration regime of children born out of surrogacy arrangements is the legal reference for the regulation of these cases. It enables their registration, following verification by Spanish authorities that a set of conditions are met which aim to make sure that the rights of all parties involved are protected.

Spanish authorities require:

  • the parties to carry out the necessary steps via legal proceedings in the country of origin where the judgement determining the parentage of the child is issued.
  • the court of origin has jurisdiction to rule on the case.
  • all procedural rights of the parties to be safeguarded, particularly those of the birth mother, whose consent must be free and informed.
  • the best interests of the child to be respected.
  • all granted consent to be irrevocable.

This regulation is in keeping with ECtHR case-law that has been emerging on this topic and it also allows for recognition of parentage without having to resort to other channels of Spanish legislation which will ultimately issue the same outcome.

Many rights are at stake in surrogacy but its ban in Spain does not abolish its practice, thus it seems appropriate to propose its regulation. Given that this is a problem that extended beyond borders some time ago, international support to control the repercussions of this practice on the exploitation of women and the commoditisation of human life would be beneficial.

 

Yolanda Dutrey

Yolanda Dutrey es licenciada en Derecho por la Universidad de Zaragoza, doctora en Derecho por la Universidad Complutense de Madrid y Master en Derecho comunitario por la Universidad Complutense.

Tiene numerosas publicaciones en monografías, libros y revistas en diversas materias de Derecho internacional.

Es profesora titular de Derecho internacional privado de la Universidad Rey Juan Carlos en Madrid e imparte másteres de especialización en diversos ámbitos del Derecho.

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