Children born after a surrogacy process in the United States are registered in the Spanish Civil Registry following the guidelines contained in the Instruction of October 5, 2010, of the General Directorate of Registries and Notaries. In this Instruction, in a simplified manner, it is indicated that, when the children are born in a country where a judgment issued by a competent Court is obtained and, the judicial procedure could be equated to one carried out in Spain, the minors will have access to the inscription in the Spanish Civil Registry, always with the objective of protecting their best interests.
Following the above, in the case of Ana Obregón, the minor should have access to the Spanish Civil Registry. However, there are two particularities in her case:
1.- What legal proceedings have been carried out in the United States?
Before answering this question, and given that there are still many unknowns, we will start from two premises that we assume, although they could be otherwise. These premises are:
a.- That the person who signed the surrogacy contract was Mrs. Obregón and not her son prior to her death and,
b.- That the judicial proceeding is being carried out before the Courts of the State of Florida, since certain states would allow the judicial proceeding to be carried out there, even if the minor was born in another state. This would be, for example, the case of California, where if the embryo transfer had been carried out there, filiation could be established through its courts and would later be recognized in Florida.
Therefore, understanding that the judicial proceeding is being followed before the Courts of the State of Florida and that it was Mrs. Obregón who signed the contract, based on the Law of the State, Ana Obregón can only be the mother of the minor, even if she is biologically her grandmother.
Now, for further complexity, in the state of Florida, when contracts are entered into by unmarried couples or in cases of single parenthood as the present one, the statute governing these cases is that of “Pre-planned Adoption” (Art. 63.213 Civil Code of FL). It is not an adoption per se as what we would understand in Spain by adoption, but, de facto, it is a case of surrogacy as any other, but, due to the marital status of the intended parents, it must be covered under the rules of this legal heading.
The complexity now lies in how the Spanish Civil Registry, in this case the Spanish Consulate in Miami, interprets a pre-planned adoption judgment. So far, this Consulate has seen these cases as mere cases of surrogacy and has registered them complying with a series of requirements, as it could not be otherwise. However, due to the media overexposure of this case, it is possible that the registration of this minor will become more complicated and will be examined more closely. Nevertheless, there should be no major problem in registering the minor as Ana Obregón’s daughter, regardless of her biological reality. Therefore, all the public opinion that revolves around whether or not Ana Obregón will be an adoptive mother is erroneous. This does not apply or, at least, should not apply in the present case.
Finally, it should be noted that the Spanish Consulate in Miami is months behind in the registration process, so we will not know how it will proceed for several months.
2.- How does it affect that her deceased son’s sperm was used to father the child?
It is very common, necessary and mandatory in the United States that, in order to freeze a sample of genetic material, it must be indicated what the destination of the sample will be if the patient dies. Normally the options that exist would be:
a.- Discard the sample.
b.- Donate it to another family.
c.- Donate it for research or laboratory personnel practice purposes.
d.- Donate it to another person who can use it for reproductive purposes or decide the destination of the sample.
In the case of Ana Obregón, it is obvious that her son froze his sperm sample authorizing his mother to use it for postmortem reproductive purposes.
Regardless of the extraordinary nature of the situation, the use of Ana Obregon’s son’s genetic material has no legal relevance. He is acting as a sperm donor in this case since he has ceded the use of his genetic material to Mrs. Obregón and, according to the laws of both Spain and Florida, donors of genetic material are not parents in any case. The parents are the ones who have the procreational will and sign the surrogacy/pre-planned adoption contract, but in no case can the donors be parents and, therefore, Ana Obregón could never be the legal grandmother of this child, but her mother.
However, the law of the state of Florida, in its art. 742.17.4 in relation to the determination of filiation, indicates that a child conceived with the genetic material of a deceased person, will not have access to his/her inheritance (and therefore to his/her filiation), unless it has been mentioned in his/her will. Will it be a possibility in this case? We do not know, but if it were to happen, this would be directly related to the inheritance laws of Spain and the legal situation would reach a new level of complexity.
Finally, regarding the use of the biological material after more than 12 months and in relation to art. 9 of our Assisted Human Reproduction Law, this does not affect the present case, since we must be governed by U.S. law and not Spanish law. This article 9 would only be relevant in the case of wanting to establish the filiation of the minor in favor of Ana Obregón’s son, which, in our opinion, is legally irrelevant and would clash with our inheritance laws. However, we do not know what the outcome of this case will be and how far it is intended to go.
