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Surrogate Motherhood

The surrogacy contract

Recent technological developments have led to the emergence of assisted reproduction techniques such as surrogate motherhood.

This form of assisted reproduction involves the intended parents (intended parents) and a pregnant woman with whom the intended parents usually sign a contract.

By means of this contract, the expectant mother freely consents to carry out the gestation and undertakes to hand over the child to the other party of the contract after the birth. The gestational mother will relinquish the baby and the intended parents will be registered as parents in the Civil Registry with all effects.

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Spanish legislation on surrogate motherhood

Spanish law establishes that the surrogacy contract is null and void according to article 10 of Law 14/2006, which regulates Assisted Human Reproduction Techniques. This means that, in Spain, any surrogacy agreement is legally invalid and has no legal effect. However, this situation contrasts with other countries where surrogacy is permitted and regulated by law.

As a result, some Spanish couples who wish to use this technique to have children choose to travel abroad. In these countries, they can enter into a valid and legally recognised surrogacy contract, allowing them to fulfil their desire to form a family.

This legal disparity between countries highlights the differences in the regulation of assisted reproduction internationally and the challenges faced by couples seeking alternatives to parenthood.

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What is happening in other countries?

Solutions in comparative law vary widely: from accepting surrogacy free of charge to limiting its practice to residents of that country. Other systems choose not to limit the validity of surrogacy, as long as the rights of all parties and of the child are safeguarded.

Spaniards who wish to have a child by this technique abroad may encounter the problem of the effectiveness and recognition of filiation in Spain. Currently, case law allows recognition if there is a foreign court ruling on filiation, with the risk that otherwise the interests of the child may be left unprotected.

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Surrogacy Lawyers

How can I get a child born through surrogacy abroad recognised as my child?

Spanish legislation considers the surrogacy contract null and void in Article 10 of Law 14/2006 on

Assisted Human Reproduction Techniques. Other countries allow the practice of surrogacy, which is why some couples decide to travel abroad to enter into a valid surrogacy contract.

If there is a court ruling

The Instruction of the DGRN of 5 October 2010 states that a birth abroad as a result of a surrogacy contract may be registered if the judicial decision determining the filiation of the child is presented. This is the case in certain states in the USA and Canada, among others.

The Spanish authorities will carry out an incidental control of the judgment, proceeding to its registration if the guarantees required by the 2010 Instruction are met.

In the absence of a court judgement

If the country of the intended parents’ choice does not issue a court judgement, it will not be possible to register the filiation through the recognition of the birth registration abroad, which causes great legal uncertainty for these families.

Similarly, if the intended father is also the biological father, he can claim paternity by means of a DNA test. If there is another intended parent, he or she may initiate adoption proceedings. The most problematic case is if there is no genetic material, where the Instruction states that applications for registration that are not supported by a court ruling must be rejected and that it is necessary to come to Spain to initiate the corresponding proceedings for the registration of filiation, with the intervention of the Public Prosecutor’s Office, or to bring legal action to claim said filiation.

The case law of the ECtHR (jurisprudencia del TEDH) should guide our authorities in interpreting the Instruction of 19 February 2019

At Winkels Abogados we can help you with any problems that may arise in obtaining the effectiveness of surrogacy performed abroad.

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