What is the situation of surrogacy in Spain in 2022 and forecasts for 2023?
In Spain there is no specific regulation regarding surrogacy. The only reference we find about it is in Law 14/2006, of May 26, on assisted human reproduction techniques. Specifically, its article 10 states:
- The contract by which the gestation is agreed, with or without price, at the expense of a woman who renounces maternal filiation in favor of the contracting party or of a third party, shall be null and void as of right.
- The filiation of children born through surrogacy shall be determined by delivery.
- The possible action of paternity claim against the biological father remains unaffected, according to the general rules.
Based on the above, it is not correct to state that surrogacy is illegal in Spain. However, since the contracts are null and void and the maternity can only be awarded to the woman who has given birth, it becomes complicated to protect the rights of the parties in our jurisdiction, having to go abroad to have a child by this technique.
Therefore, the filiation of the children may be established following the channels established by law, as long as the process has been done in a country where there is a clear regulation on surrogacy.
On the other hand, given the growing volume of existing cases, in 2010, the General Directorate of Registries and Notaries issued on October 5 an Instruction that serves as a basis for the registration of children born by this assisted reproduction technique in Spain, differing the mode of registration depending on the characteristics of the country of destination in which the process has been carried out.
Regarding the treatment and recognition of surrogacy by central European Courts, we can affirm that, in spite of continuing to grant sovereignty to the different countries on the exact way of registration, the best interest of the minor always prevails, forcing the states to find a solution to any situation of legal insecurity of the minors.
