The Spanish Supreme Court has once again ruled surrogacy as an abuse of human rights, but the recent judgement, handed down on April 5th went a step further in condemning the practice altogether.
The case in question involved a single Spanish woman who had entered a surrogacy arrangement in Mexico through a surrogacy agency. Initially, she was able to civilly register the purchased child as her own in Spain, contrary to Spanish law. But the state prosecutor appealed the registration, and the supreme court ruled that adoption was the only way that the woman in the case could be recognized as the baby’s legal mother, a decision in line with a similar 2013 case. The judges ruled unanimously, and condemned both surrogacy and the practice of surrogacy agencies recruiting clients in Spain.
The woman’s situation was tricky because surrogacy is illegal in Spain, and motherhood is only assigned through giving birth or by adoption. So, although a 2010 instruction allows for a child born abroad through surrogacy to be registered in Spain—through the biological father, provided he is on the birth certificate—the surrogate, the birth mother, must also be written on the birth certificate, and any second parent will only be recognized by adoption.
In surrogacy, the court’s opinion stated, both the birth mother and the child are “treated as mere objects, not as persons endowed with the dignity of their condition as human beings and the fundamental rights inherent to that dignity.” Additionally, “the future child” is “reified” and “deprived of the right to know his origins, treated as an object of exchange.”
For this woman’s case, the route of adoption was proposed as a compromise between ensuring the best interests of the child, while providing some barrier against a surrogacy industry that actively seeks clients in Spain.
For a child who is born through surrogacy “and ends up stably integrated into a de facto family nucleus,” remaining in that nucleus is often in its best interests, according to the court, an opinion in line with a recent ruling by the European Court of Human Rights.
At the same time, the court did not want to make it any easier for either Spaniards or the surrogacy industry to take advantage of lax surrogacy laws in other countries.
The adoption solution “satisfies the best interests of the minor as required by the European Court of Human Rights, but … tries to safeguard the fundamental rights … of pregnant mothers and of children in general,” the opinion stated.
These rights “would be seriously damaged” if the courts had allowed the woman to be directly considered the mother of a baby she had not given birth to but had acquired through a commercial surrogacy contract.
Additionally, it recognized the promotion of surrogacy agencies in Spain as a legal and human rights contradiction.
“The agencies that mediate gestation by substitution act without any hindrance in our country, they advertise their activity despite the fact that the General Advertising Law considers ‘advertising that violates the dignity of the person or violates the values and rights recognized in the Spanish Constitution’ as illegal. These agencies have organised face-to-face surrogacy ‘fairs’ in Spain in which they advertise and promote their ‘services,'” the judgement reads.
“News about famous people bringing a child to Spain as a result of gestation by substitution are frequently published without the competent administrations for the protection of minors adopting any initiative to make this protection effective, even to verify the suitability of the parents,” it adds.
It recalls, too, that the Spanish Bioethics Committee, an independent consultatory body, has highlighted the “inconsistency that the contrast between this legal regulation supposes and the fact that in practice there are no obstacles to recognizing the result of a gestation by commercial substitution in which the most elementary fundamental rights of the surrogate mother and the child are violated, if it has taken place abroad.”
Hopefully, this judgement will move the “competent administrations for the protection of minors” to thwart the activities of surrogacy agencies in Spain.
