What is surrogacy in Spain and how is it regulated?

Until 2019, DNA tests were accepted in countries that did not comply with this process

   MADRID, 29 Mar. (EUROPA PRESS) -

Spain only allows access to the Civil Registry for children born by surrogacy with a filiation decree. The Government of Pedro Sánchez limited this possibility in 2019 with an instruction from the Ministry of Justice that affected couples who went to countries such as Ukraine or Georgia to access this practice, where surrogacy is legal, but filiation sentences are not issued. .

Surrogacy is not legal in Spain as stated in the Law on Assisted Human Reproduction Techniques. In its article 10 on "surrogate pregnancy" it is indicated that "the contract by which the gestation is agreed, with or without price, by a woman who renounces maternal affiliation in favor of the contracting party or from a third party".

This same article also states that "the filiation of children born by surrogate pregnancy will be determined by the delivery" and that "the possible claim of paternity with respect to the biological father is preserved, in accordance with the general rules" .

In addition, since the entry into force of the reform of the Abortion Law, in March of this year, surrogacy has been declared in the country as a form of violence against women. In addition, it prohibits the advertising of intermediation companies that seek to contact families or interested persons in Spain.

However, Spain allows the registration of the children of Spanish couples who have resorted to this practice abroad. And, until 2019, he did it in two ways.

The first, through the instruction of October 5, 2010, which states that registration "can only be done by submitting, together with the registration application, the judicial decision issued by the competent Court in which the parentage of the born is determined." This is the case, for example, in the United States.

The second is a consequence of the third point of the Assisted Reproduction Law on "the possible action to claim paternity with respect to the biological father". This allows a child to be registered in the Civil Registry with a DNA test from the father, who in cases of surrogacy is usually the donor.

Until 2019, this was the resource used by many Spanish embassies to accept the request for registration in the civil registry in countries where the practice is legal, but filiation judgments are not issued, such as Ukraine or Georgia. In these cases, registration was done with a DNA paternity test.

In February of four years ago, Spain issued an instruction that generalized the admission of DNA tests in these countries. However, weeks later he annulled it in a text in which he also warned that he would "pursue" the agencies and establishments that offer these services and that "profit by leading hundreds of couples to procreate in third countries through this activity." .

After this decision, the only way to leave these countries for the Spaniards who were already there was to request the minor's Ukrainian passport and, once in Spain, the father, who is the one who provided the genetic load, obtains a sentence of filiation of a Spanish court and your spouse initiate a process of co-adoption. This is a process that lasts several months.

On the other hand, since 2016, the Ministry of Foreign Affairs advises against resorting to these surrogacy processes in Ukraine, where the Prosecutor's Office of this country investigates possible cases of child trafficking in a clinic.