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In legal terms Surrogacy (“alquiler de vientres” in Spanish) is the practice related to one or more persons (generally a couple) hiring a woman (the gestational surrogate) for the gestation and delivery of a child conceived through assisted reproduction. In this context, after the child’s birth, this woman will definitively renounce any parental rights over the child in order to allow the contracting persons to legally appear as parents.

Even though this definition could potentially blur with adoption, in surrogacy there is the clear biological involvement of the social parents, who will raise the child.

There are several types of surrogacy:

  • Traditional surrogacy, where the carrying mother is as well the biological (genetical) mother. Where sperm from the social parent is artificially inseminated into the mother in a fertility clinic.
  • Gestational surrogacy, where an embryo is implanted in the carrier mother. In this case there is no biological relationship between the gestational surrogate and the implanted embryo.
  • Altruistic surrogacy is when the carrier received no compensation for the pregnancy and the delivery.
  • Commercial surrogacy is when there is a financial arrangement compensating the woman for the pregnancy and the delivery.

The legal, moral an ethical aspect related to surrogacy are a hot topic all over the world. While certain countries are allowing surrogacy in all its aspects (for example India, Ukraine and many USA states) other countries are forbidding it completely like Italy.

Throughout the world there is no clear-cut legislation yet. There are countries like the UK where altruistic surrogacy is admitted and commercial surrogacy is illegal and countries where even though surrogacy is illegal, it is not criminally sanctioned like France.

As expected this state of confusion has generated thriving reproductive tourism. In order to avoid national laws many couples are hiring the services of foreign fertility clinics and agencies that will take care of the medical aspects and of finding a gestational surrogate. Countries like India and the USA are rapidly becoming market leaders. Indian clinics offer full service packages including assisted reproduction and child delivery for as low as 15.000€.

Surrogacy and the Spanish law

In Spain the law over medically assisted human reproduction of 2006 (Ley sobre Técnicas de Reproducción Humana Asistida) clearly forbids any kind of surrogacy. Spanish couples going to a foreign country in order to get into a surrogacy programme are committing fraud, as it is not possible to take advantage of a foreign legal system in order to get paternity via a method that the Spanish law prohibits.

After few precedents the Spanish General Registry and Notarial Administration (Dirección General de los Registros y del Notariado DGRN) published a directive in October 2010 allowing the inscription of children conceived through surrogacy in the Spanish civil registry. This directive was later invalidated by the Spanish Court of Preliminary Instruction with retroactive effects, in practice invalidating any previous inscription of surrogate children in the Spanish Civil Registry.

Surrogacy for Spanish couples

From now on the registry authorities of Spanish Consulates around the world will refuse to inscribe any child if there is a suspicion of surrogacy. This will lead to serious problems as the children will not be allowed to be included in the social parent’s passport thus making it extremely difficult for the child to enter into Spanish territory.

Surrogacy for foreign resident couples in Spain

In this case Spanish law is not applicable to foreign resident couples. The national laws of both parents will determine if surrogacy is a viable option. If the parents are nationals of different countries, it is difficult to foretell if surrogacy is possible from a legal point of view. However a lawyer specialised in international family law should always be consulted.