In this post we comment on an issue related to Family Law that has undoubtedly generated social debate due to the rights that come into play in these cases: the Plenary of the First Chamber of the Supreme Court has issued a ruling in which it ensures that surrogacy or gestational surrogacy violates the rights of surrogate mothers and children, as it involves damage to the best interests of the child and exploitation of women that it considers contrary to the dignity of persons.
It is a position aligned with the current legal situation of the so-called ‘surrogate womb’, a practice that is not legal in our country.
Likewise, the sentence points out that, in cases in which the child born through this technique enters Spain and becomes part of the nucleus of a family, the way to protect the rights of the child is adoption.
Surrogacy: What does the Supreme Court say?
As explained by the Supreme Court in its ruling, in cases of surrogate motherhood “Both the pregnant mother and the child to be gestated are treated as mere objects, not as persons endowed with the dignity proper to their condition as human beings and the fundamental rights inherent to that dignity”. As a result, the High Court establishes that the recognition of the filiation relationship to the mother comitent must be obtained through adoption. This is the solution offered in a case in which the Public Prosecutor’s Office filed an appeal in cassation against a judgment that declared maternal filiation with respect to a person who is not the biological mother of a child born from a surrogate pregnancy, without providing her own genetic material, carried out in Mexico by means of a contract in which a mediating agency intervened.
Thus, the judgment of the Supreme Court upholds the appeal, and does so by recalling that in a 2013 judgment it already stated that surrogacy contracts violate the fundamental rights of both the pregnant woman and the gestated child, and are therefore manifestly contrary to our public order.
Going deeper into this idea, the Supreme Court reiterates that these contracts are null and void, according to article 10 of the Law on Assisted Reproduction Techniques, seriously violating the fundamental rights recognized in our Constitution and in the Convention on the Rights of the Child.
Exploitation of women and harm to the best interests of the child
The Supreme Court declares in its ruling that the surrogacy contract involves a harm to the best interests of the child and an exploitation of the woman that is considered unacceptable.
Thus, both the gestational mother and the child would be treated as “mere objects” in this legal relationship, and not as persons endowed with the dignity proper to their condition as human beings and the fundamental rights inherent to that dignity.
On the one hand, the pregnant mother is obliged from the beginning to hand over the child she is going to gestate, renouncing before the birth, even before the conception, to any right derived from her maternity.
In addition, she is forced to undergo medical treatment that puts her health at risk and entails additional risks to pregnancies resulting from sexual intercourse.
On the other hand, the mother waives her right to privacy and medical confidentialityIn addition, issues such as the interruption of pregnancy or embryo reduction, how the delivery will be (by cesarean section), what she can eat or drink during the contractual period, what lifestyle habits she must maintain… In the case in question, for example, sexual relations are forbidden, her freedom of movement and residence is restricted and she is obliged to undergo random tests for drugs, alcohol or tobacco without prior notice, at the request of the expectant mother.
Finally, the principal is vested with the decision as to whether or not the expectant mother should remain alive should she suffer any life-threatening illness or injury.
The result is that limitations are imposed on the pregnant woman’s personal autonomy and her physical and moral integrity that are incompatible with human dignity.
On the child’s side , he/she would be deprived of the right to know his/her origins, being treated as an object of exchange to be “objectified”.
A criterion based on European standards
It should be recalled, as the Supreme Court did, that the violation of human dignity implied by surrogacy contracts is a violation of human dignity. is included in European and international regulations, as well as in Spanish regulations. However, and in spite of the international conventions and the legal provisions that declare the nullity of this practice as of right and proscribe the advertising that violates the dignity of the person, the reality is that the intermediation agencies act and advertise freely in Spain, and that the child born abroad as a result of a commercial surrogacy enters Spain and ends up integrated in a stable manner in a family nucleus.
For the Supreme Court, the satisfaction of the best interest of the minor in these cases, when the child is integrated in a family, is achieved when the recognition of the filiation relationship to the commissioning mother is obtained by means of adoption.
This is the way in which the best interests of the child can be satisfied as required by the European Court of Human Rights.
In the case of the biological father, the recognition of this relationship can be made by the exercise of the action of paternity claim.
Otherwise, these rights would be seriously damaged if the practice of commercial surrogacy were to be promoted because it would facilitate the actions of surrogacy intermediation agencies, in the event that they could assure their potential clients the almost automatic recognition in Spain of the filiation resulting from the surrogacy contract, despite the violation of the rights of the surrogate mothers and the children themselves.
And the fact is that the adoption procedure implies, among other things, the ‘study of socio-family circumstances’ or ‘the assessments on the suitability to cover the needs of the minor’ (in short, the suitability of the adopter or adopters to assume the condition of parent with respect to the adopted minor). “should not be considered as an obstacle to the satisfaction of the best interests of the minor subject of the adoption, but as actions aimed at its satisfaction”. Therefore, the Supreme Court continues to reject that a woman can directly register a child born from surrogacy in the Civil Registry.
The Supreme Court also launches a criticism that we share: the absence of control measures limiting surrogacy agencies in our country. Thus, these agencies engaged in surrogacy act without any hindrance in our country, and advertise their activity (just use as search terms ‘surrogacy’ or other similar in an Internet search engine) despite the fact that Article 3.1 of the General Advertising Law considers illegal “advertising that violates the dignity of the person or violates the values and rights recognized in the Spanish Constitution”.
“These agencies have organized in Spain face-to-face surrogacy fairs in which they advertise and promote their ‘services’. Frequently,news are published about famous people who announce the bringing to Spain of a ‘child’ resulting from surrogacy, without the competent administrations for the protection of minors adopting any initiative to make this protection effective, even to verify the suitability of the principals”, assures the Supreme Court.
In the same line, the Supreme Court recalls the “incoherence of the contrast between this legal regulation and the fact that in practice there are no obstacles to recognize the result of a commercial surrogacy in which the most elementary fundamental rights of the gestational mother and the child have been violated, if it has taken place abroad”. Remember that we are specialists in Family Law: ask us your legal questions.
