Back to 2023_3_31_Maternidad_subrogada_Nanclares
March 31, 2023
Javier Nanclares Valle
Professor of Civil Law and director of Master's Degree of Family Law at the University of Navarra.
The recent news of Ana Obregón's maternity thanks to resource to a surrogacy performed in the United States has generated a media stir B , the result of combining the celebrity of the character, a classic of the tabloids over the past decades, with her personal circumstances and the very modality chosen to be a mother.
I start from the premise that the desire to have offspring seems to me absolutely respectable and legitimate. But not all the means used to satisfy this desire enjoy such legitimacy. In this case, the means to which the actress has resorted has been a surrogacy contract signed through an American agency dedicated to this activity, undoubtedly lucrative.
If Ana Obregón has hired a surrogate mother in that country to gestate, give birth to and give up the daughter born of heterologous fertilization, it is because, for obvious reasons, she could not be a mother by nature, and because it was highly improbable (for reasons of age, reflected in art. 175.1 of the Civil Code) that she could satisfy her desire for motherhood by adoption. If she has turned to employment for assisted human reproduction techniques, it is to achieve what she would not have been able to achieve either by nature or by adoption. And, more specifically, if she has resorted to surrogacy in the United States, it is to circumvent the limitations imposed by Spanish law, which is sample contrary to the said internship.
In Spanish law, surrogacy contracts are null and void, regardless of whether or not the woman receives remuneration for offering her body to gestate the child and for renouncing her maternity (article 10 of Law 14/2006 on assisted human reproduction techniques). The above, of course, does not mean that the child does not have parents: the mother will be the one who gives birth to the child (I omit here, for the sake of simplicity, the curious novelties introduced by Law trans 4/2023, which would lead to admitting that it can be a registered male who gives birth to the child) and the father will be the one who is biologically a father and manages to be determined as such by a final judgment. Whoever is the partner of the latter, and is also the parent, will have to resort to adoption.
The civil service examination to surrogacy contracts has been recently reinforced by the Organic Law 1/2023, of February 28, whose exhibition of Motives qualifies this internship as illegal and as a serious form of reproductive violence, which leads to the prohibition of its commercial promotion and the promotion of institutional campaigns to "demystify it".
So far, synthetically, this is what the Spanish regulations say. Another thing is its application internship when, as in the case of Ana Obregón, we are faced with a surrogate motherhood performed in a country where it is permitted. The question arises as to whether this maternity, legal in the United States, must be recognized by Spanish law and registered in our Civil Registry. And it is then when we find ourselves with the diversity of criteria of the General Administration of Legal Security and Public Faith (framed in the Ministry of Justice) and the Spanish Supreme Court.
For the former, if the determination of parentage in favor of the principal (in this case, Ana Obregón) is made by means of a judicial decision issued by a competent foreign court, such parentage may be recognized and registered in Spain (Instruction of October 5, 2010, ratified by the Instruction of February 18, 2019).
On the other hand, for our Supreme Court, gestation by surrogacy is contrary to public order, as it constitutes an attack against the dignity of the child (who is objectified and converted into the object of a business, disposing of his marital status) and of the gestational mother (whose reproductive functions are commercialized and whose status, frequently, of economic necessity is taken advantage of by third parties), which leads to the fact that the filiation in favor of the person who contracted this surrogacy cannot be registered by this means in the Civil Registry (Judgment of February 6, 2014 and Order of February 2, 2015). This will lead to the application of article 10 of Law 14/2006, previously mentioned: the one who gave birth to the child will be the mother, even if she does not wish to be one. And the actress who is the commissioner will have to resort to the adoption of the child, in the event that the judicial authority deems it appropriate and that there is a de facto status of care of the child, whose preservation and juridification by way of adoption is deemed appropriate to the best interests of the child.
If, as seems more than likely, the principal has provided the desire to become a mother and the money to achieve it, but not her eggs, the factual situation will be very similar to that which gave rise to the Supreme Court Judgment of March 31, 2022, where the court, unanimously, rejected the claim raised and harshly criticized both such practices (especially when, as in the case of Ana Obregón, they border on the sale or trafficking of children), as well as the inaction of the Spanish authorities in the face of the fact that a child born abroad as a result of surrogacy enters Spain without problems and ends up integrated into a certain nucleus of the family, bordering on the sale or trafficking of children), as well as the inaction of the Spanish authorities in the face of the fact that a child born abroad as a result of a surrogate pregnancy enters Spain without problems and ends up integrated in a certain family nucleus for a long time, thus generating a status of consummated facts that leads the judges to decree the adoption in favor of the person who consciously violated the Spanish law.
The case of Ana Obregón has stirred up a discussion of strong axiological content. On the one hand, unrestricted voluntarism, spurred on by technology; on the other, respect for human dignity and civil service examination to the commercialization of life and filiation. For the moment, it seems that the position of the Spanish legislator and the Supreme Court is clear in this respect. We shall see what the future holds.