Why is surrogacy illegal in Spain?
Surrogacy is process in which a hired woman carries a baby for a couple who are unable to conceive or carry a child for themselves – due to medical, physical, or personal reasons. There are two types of surrogacies which make the law controversial. In a traditional surrogacy, the surrogate is genetically related to the baby, via artificial insemination, which makes the surrogate mother the baby´s biological mother. Conversely, in host surrogacies, the more common type, an in vitro fertilisation treatment (IVF) is used so that the host´s eggs are not part of the process – thereby ensuring that the surrogate mother is not biologically, or legally, related to the baby. Surrogacy is not legal in Spain. Nonetheless, the contention lies in whether Spain should consider legalising surrogacies and if the current approach, in dealing with surrogacies, is effective to uphold the rights of its citizens and the surrogate child.
Article 10(1) of Law 14/2006 proves that surrogacies, or the maternal parentage in favor of a contractor or third party, is null and void – regardless of whether the contract was paid or unpaid. This proves that the law on surrogacies is determined rigidly and affords little protection for parents. It was deemed unlawful because as the European Parliament determined in 2015, surrogacy “undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity.” Therefore, if a Spanish couple wished to have a surrogacy performed, they are forced to find a service in a different jurisdiction and contract internationally. However, when the child is born, the filiation of child is not legally recognised. Nevertheless, most Spanish authorities have allowed parents to bring the child into Spain to be raised as their own; however, this creates additional complications with the rights of parents since the baby is typically registered under the locality of the place of birth, and not of Spain.
Consequently, the alluded lack of afforded protections with residencies and legal parentage proves that there are many inconsistencies within the regulation of this law, as many aspects are overlooked by the court. This is further explored with same-sex couples because the type of relationship of the couple determines the afforded legal protections and available options for conception. For example, if there is same-sex couple, who are both female, the law in Spain allows for a process of shared biological motherhood. This method is called ROPA (Reception of Oocytes from the Partner), or reciprocal IVF – stipulated by Law 14/2006. By this process, one of the women, the genetic mother, provides the egg (the genetic material) and the other, the biological mother, carries the pregnancy (via her womb) – which is essentially the same process of a normal surrogacy. Thus, same-sex female couples prove that surrogacy, in a specific manner, actually is regulated and lawful – contradicting Article 10(1) of Law 14/2006.
Protection of children born from surrogacy in Spain
As seen from a seminal case in 2015, the courts will recommend adoption if it is in the ´best interest of the child´. In the case at hand, the mother used a surrogacy agency to have the child born in Mexico. The child was brought into Spain and resided with his intended parents for seven years, however the child was not registered in Spain, and had no legal relationship with his parents. A dispute arose about whether the child ought to live with his biological mother, who was the host surrogate, or remain with the intended couple, despite being contrary to the law. In this case, and many similar situations, the surrogate mother was not interested in raising a child and wanted no part in his care. Since surrogacy is illegal, the court decided that it would be detrimental to the child´s welfare to remove him from his family, thereby ordering the couple to adopt their surrogate child to avoid any legal implications, such as the child being deported. As aforementioned with the varying types of surrogacies, complications arose due to the discrepancies between which mother would be afforded legal parentage to the child.
Additionally, unlike female partners, same-sex couples (who are both men) are not protected under the Human Assisted Reproduction Techniques Act. Therefore, in order to have a surrogacy performed, the men would have to outsource a different country for their surrogacies and their only route for legal parentage would be through adoption, provided under Act 13/2005 – which legalised same-sex marriage to allow same-sex couples access to the virtually all same the marital rights afforded to heterosexual couples. However, this creates an additional uncertainty for the child because although it was reported that 97.4 percent of adoptions are approved in Spain (as of 2016), the application for adoption is not guaranteed and may be rejected if the house of the intended couple is deemed “unsuitable”. Thus, despite Article 14 of the Spanish Constitution and Article 21 of the EU Charter of Fundamental Rights being implemented to combat discrimination, adoption agencies may be implicitly biased and reject the application for alternative grounds, leaving both the child and the parents at a severe disadvantage.
Which country is legal for surrogacy?
Canada, the United Kingdom, and Portugal have regulated surrogacies to be only allowed in an altruistic sense where the surrogate mother does not receive any direct economic benefit. India seems to be changing their laws for a similar fashion; however, it is already implemented into their legal system that surrogacies are banned for foreigners. Moreover, some countries are equally discriminatory to their nationals because in Ukraine and Greece, for example, surrogacies are only available to heterosexual couples. Conversely, the United States provides the most protection for couples because although it is the most expensive, it is also the most regulated jurisdiction for safety. Nevertheless, the benefit of having varied jurisdictions is that if one country does not comply with the couple´s needs or circumstances, then they have the option to contract in another country.
On the other hand, relying on a completely external source has its risks. For many Spanish couples in particular, knowledge of the health and welfare of their child during the pregnancy is completely dependent on their agreement with the surrogate mother and it requires her to keep consistent communication with the family, which is an extremely difficult task to control. Furthermore, if there are unforeseeable circumstances, the surrogate mother is often isolated, leaving the family in Spain to offer support remotely – both of which are mentally and economically strenuous. Banning surrogacies in Spain forces couples to find alternative means and if they do not have the financial means to afford necessary healthcare, the couples often resort to finding surrogacies through the black market, further contributing to the unsafety and danger of the lack of protective regulations. Therefore, it is necessary that the law on surrogacies in Spain is amended because as it stands, the banning of surrogacies is detrimental to most families and discriminates upon the varying types of relationships of those who wish to have a surrogacy performed.
Written in collaboration with Mia Harrigton