One of the most common questions we receive when a new client contacts us is about safety in the destination country. The concept of security in a surrogacy process has multiple aspects. However, in this post we will focus on legal security only, without going into economic, ethical-moral aspects or the situation of the countries.
From Huerga-Abogados, for a clear understanding, we like to divide the countries in which surrogacy processes can be performed in 3 groups:
- Countries with a specific regulation on surrogacy in which a judgment of filiation is obtained: These are countries where there is a clear and solid law in favor of surrogacy that regulates exactly the rights and obligations of the surrogate and the intended parents and, in turn, protects the rights of the newborn from the moment of birth.
These are countries with great specifications on who can become a gestational carrier, as well as establishing requirements for the intended parents. This is why this group of countries would be the ones that offer the greatest legal security.
Examples include the U.S. and Canada, among others.
- Countries with a specific regulation on surrogacy in which a judgment of parentage is NOT obtained: In these countries there is a specific legislation that defends and regulates surrogacy, clearly determining the figure of the surrogate and the intended parents and their rights and obligations with respect to the minors. However, they are countries in which to establish the filiation with the minors it is not necessary to go to Court, recognizing the filiation through a simple administrative process.
Likewise, these are countries with more lax criteria when it comes to defining the participants in a surrogacy process.
Since in these countries there is no judicial sentence that determines the filiation of the minors, we will always have to go to the Spanish Courts to protect the interests of all parties.
Examples include countries such as Ukraine (except for the current war situation) and Georgia, among others.
- Countries in which surrogacy is allowed because it is not forbidden: There is a third group of countries in which there is no legislation either for or against surrogacy and, therefore, it is possible to form a family through this means of assisted reproduction because nothing prohibits it.
In some of these countries, and on certain occasions, it is possible to obtain court rulings that, in most cases, are not recognized by the Spanish authorities, as they are not comparable to a judicial process in Spain.
Although these are countries that receive a high volume of cases, it must be understood that, in the absence of specific regulation, all parties involved in the process run greater risks.
In all cases carried out in these countries, filiation must always be established before a court in Spain.
Examples include countries such as Colombia and Cyprus, among others.
The above description of the types of countries ranges from those with the highest to those with the lowest legal certainty, with those with the highest legal certainty being the most recommended. Nevertheless, surrogacy processes can be carried out in all of them, as long as the rights of all parties are respected and the implications and risks that each country entails are understood.
Finally, the way in which the filiation of the children is established will have direct implications on their legal status in Spain, on the length of stay in the destination country, on the periods of childcare leave of their parents and on the time it will take for the children to be recognized as the children of their parents, among other aspects. It is therefore very important to have good legal advice from the beginning of the process, at the very moment of choosing the country of destination.
