The key questions about surrogacy

This week, news of the motherhood of well-known Spanish actress Ana Obregón was published, reigniting the debate in Spain about the legality of surrogacy. 

This issue has always generated intense ethical debate, both at the political level and on the streets.

What is surrogacy?

It is a method of assisted reproduction characterized by the fact that the woman who carried the child to term is not the legal mother of the child.

This means that a woman agrees to carry another person's or a couple's child, whether there is any payment or not.

Is this legal in Spain?

The answer is NO. It has been prohibited in our country since 2006, as stated in the Law on Assisted Human Reproduction. This law establishes that the contract by which a pregnancy is agreed, whether a price is paid or not, is null and void.

New obstacles after the reform of the abortion law

After the adoption of the new reform of the abortion law last February, this practice has become even more troublesome, as surrogacy is considered a form of violence against women.

Moreover, in Spain it is forbidden to advertise agencies that mediate between parties and sanctions are imposed on those who do so.

Our courts

Last year, 2022, the plenary of the Civil Chamber of the Supreme Court ruled unanimously on surrogacy. The ruling was categorical and declared all contracts regulating the practice null and void, as they violate the fundamental rights of the pregnant woman and the surrogate child.

Outside Spain

The practice is legal in more than a dozen countries around the world.

As far as the European continent is concerned, the regulation of this practice is inconsistent. In some countries, it is prohibited, in others it is tolerated, and very few countries have specific legislation allowing it.

Only six countries have enacted such legislation. However, only three of them allow financial compensation for surrogacy: Russia, Georgia and Ukraine. However, applications from same-sex couples are not allowed, and the only country where single mothers can use surrogacy is Russia.

In the other three countries where surrogacy is regulated by law, namely the United Kingdom, Portugal and Greece, it is exclusively on a voluntary basis. In Greece, the surrogate mother can receive financial compensation for the time she cannot work, but homosexual couples are not allowed to do so.

In the UK, on the other hand, single mothers are not allowed and one of the partners must be resident in the country.

Our neighboring country, Portugal, applies the same residency requirement and same-sex couples are allowed, but only if the couple are 2 women. 

Beyond the borders of Europe, it is also possible to rent a womb in countries such as Mexico, Canada or the USA, Thailand, India, Australia or South Africa.

EU legislation

Brussels has not taken any steps towards common EU legislation.

The European Parliament commissioned a comprehensive comparative study of surrogacy arrangements in the 28 Member States. It concluded that there is no clear legal trend in the EU, although all Member States seem to agree that the child needs clearly defined legal parents and a personal status. So far, however, this report has not been translated into concrete initiatives.

What are the costs of a surrogate mother?

Prices range from 35,000 euros to 150,000 euros, depending on the country where the surrogacy is carried out.

In countries where there is legislation and where surrogate mothers are subject to a series of controls and have certain rights, the price is higher.

How is the parentage of these babies regulated in Spain?

The non-pregnant mother or father registers the child in the consular register of the country where the surrogacy took place before leaving the country.

The Directorate General of Registries and Notaries requires that the child's registration has to be accompanied by a judicial decision from the country of origin; an administrative decision is not accepted.

Once in Spain, the other part of the couple, unless it is a single parent, initiates adoption proceedings.

The Supreme Court itself states in the above-mentioned judgment that the only way to settle this situation in Spain is through adoption proceedings.

Is there an age limit to be able to take advantage of this practice?

No. Our legislation provides for a minimum and maximum age for an adoption procedure. However, it is possible to rent a uterus at any age.

Illeslex Abogados

Compartir