Divorce after a surrogacy process, can my husband/wife keep my child?
Divorces after a surrogacy process can be, without a doubt, controversial. There are many fears on the part of the parents about how custody is resolved when the children are born through surrogacy, especially after highly publicized cases such as that of Miguel Bosé and Nacho Palau.
The truth is that the answer to the question will vary depending on the country in which the surrogacy process has been carried out and how the process of recognition of filiation of the child has been and whether it has already been completed.
In most countries where surrogacy is regulated, at the moment of birth, the newborn is recognized as the child of both intended parents. However, this is not always recognized by the Spanish authorities, forcing families to go to court in Spain.
In most cases, when we do not obtain a judgment of filiation in the country where the process has been carried out, we will have to go to the Spanish Courts to establish the filiation of one of the parents, and the second parent will have to adopt the newborn. The impasse of time that occurs between the recognition of the filiation of one parent and the adoption of the second parent, leaves in a very unstable limbo the parent who must adopt, since this one will need the consent of the first one to be able to be recognized as father or mother. What happens therefore if the divorce occurs at that moment? The truth is that the recognition of the second parent and the adoption will be at the mercy of one of the parents, and may lead to a contentious adoption.
The most advisable thing to do in these cases is to notarize a series of declarations so that both parties are protected in the best interest of the child.
