If you decide to start a new family through surrogacy

Most people plan to start a family at some point; it’s considered logical and natural in our world. For those in a stable heterosexual relationship in which the woman is of childbearing age, this is not difficult to achieve and can also be rewarding. The result is a natural pregnancy, which leads to the birth of a new being after nine months of gestation. Until a few decades ago, this was the most common and normal way to start a family.

But what happens if the woman doesn’t get pregnant even after expensive and lengthy fertilization treatments, or a gay couple wants to start a family? What happens if a woman doesn’t want to stall her professional advancement or go through the physical toll of pregnancy? What options does a single person have?

It’s true that there’s adoption, but it’s not easy, and the result is not assured. Many people fall by the wayside.

Americans quickly realized this, and in pursuit of the American Dream, they decided that the dream of starting a family could be within everyone’s reach as long as you had the money for it. That’s why for four decades now, they’ve performed the practice known as surrogacy, or “womb for hire”, which essentially consists of a couple or person who wish to conceive a child but are unable to do so due to certain circumstances paying to transfer their embryos into a woman’s womb. There is also the altruistic option, which does not involve a financial transaction.

But what happens in Spain? This practice is completely banned and pushes the limits of being considered a crime. That’s why such pregnancies take place outside of our borders: primarily in the United States, but increasingly in countries like India and Russia, where it is less expensive.

Even so, there are already courts that are realizing that our society is changing; a good example of this being the recent decision of the Plenary Session of the Labor Chamber of the Supreme Court. In two decisions dated October 20, 2016, the full Fourth Chamber of the Supreme Court resolved both appeals for unification of doctrine which considered whether maternity by surrogacy can be considered a protected situation for the purposes of maternity, adoption or foster care, with the distinctive feature that in one of the cases, the applicant for the benefit was a man.

One of the cases involves a working woman who has a son by virtue of a surrogacy contract; a son who is registered in the Register of the Spanish Consulate in Los Angeles with the plaintiff listed as the mother and her male partner as the father.

The other case involves a Spanish man who arranged for assisted reproduction in India using his genetic material. The surrogate gave birth to two girls, and agreed that the man would exclusively assume “all roles and obligations derived from parental authority”. The children were registered in the Consular Register as the daughters of the biological parents (the mother “for hire” and the Spanish man), being moved to Spain by their father. The Spanish social security system denied the “maternity” benefits requested by the children’s father since the Law on Assisted Reproduction proclaims the invalidity of surrogacy contracts.

The Supreme Court says that there is no fraudulent behavior by either claimant: “a social security benefit is not being created, but the demands of current benefits are being interpreted in accordance with the requirements of the legal system.” That is, since the care of minors is prioritized by social security regulations, the various prohibitions which affect registration in the Register or the surrogacy contract itself are kept out of the issue of whether or not to provide the maternity or paternity benefit.

There is also an interesting minor regulation in this area, an Instruction of the Directorate-General for Registers and Notaries on the registration regime for the filiation of those born via surrogacy. It provides a specific legal framework for children arriving from outside our borders after surrogate gestation.

Nor should we ignore the decisions of the European Court of Human Rights, which in three rulings encourages the registration of those born via surrogacy and clarifies that denying such registration violates the European Convention on Human Rights. Following these rulings, the Directorate-General for Registers and Notaries issued a Circular which authorized Spanish consuls to apply the aforementioned Instruction.

As can be seen, the peripheries of the law are gradually pushing toward the normalization of surrogacy. However, it is worth considering whether the child’s best interests would be more fully (and safely) protected by eliminating the shadows and resolving the legal limbo that characterizes surrogacy in Spain. Or is it that the child’s best interests aren’t such a priority? According to jurisprudence, register practices and legal framework can only bring stability to a reality which many people live in.

One may or may not agree, but the truth is that, as always, society is ahead of the law, especially in Spain.

We’ll see if the phrases of Antonio Machado’s famous poem The Ephemeral Tomorrow soon come true: if “another Spain is born” and we leave behind “that closed-off and religious Spain”.

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