The new Medical Code of Ethics admits altruistic surrogacy while the law rejects it

• Legality Surrogacy in the world: in which countries it is legal and where it is prohibited
• Surrogacy Ana Obregón, mother at 68 years of a baby born by surrogacy in the USA
• Legislation This is the situation of surrogacy in Spain

The issue has returned to the present day as a result of the news that has transcended this Wednesday: Ana Obregón has been a mother at age 68 through a surrogate womb in the United States. An access to maternity that in Spain prohibits the law, accepts medical ethics and fills the consultations of pediatricians.

From 2010 to the first half of 2022, 3,400 children have been registered in Spanish consulates in 12 countries born of a surrogacy, according to data from the Ministry of Foreign Affairs, to which should be added those who travel from the country where labor and birth occurred and register here. Surrogacy is an example of the different paths that law, medicine and reality have taken.

What is the legal framework that prohibits this practice?

Point one of article 221 of the Criminal Code states: "Those who, with financial compensation, give another person a child, descendant or any minor even if there is no relationship of filiation or kinship, circumventing the legal procedures of custody, foster care or adoption, with the aim of establishing a relationship analogous to that of filiation, shall be punished by imprisonment for a term of one to five years and special disqualification from exercising the right to parental authority, guardianship, guardianship or guardianship for a period of four to 10 years."

But there is also punishment for the receiver. Article 2 of the Criminal Code states: "The same penalty shall be imposed on the person receiving him and the intermediary, even if the child was handed over in a foreign country."

Article 10 of the Act on Assisted Human Reproduction Techniques states: "A contract by which pregnancy is agreed, with or without a price, by a woman who renounces maternal filiation in favour of the contracting party or a third party shall be null and void." And he adds: "the filiation of children born by surrogacy will be determined by childbirth"

Can surrogacy services be advertised in Spain?

Although the practice was prohibited in Spain, couples who wanted to access these services had easy to find out, because many of these clinics have delegations in Spain and advertised their services without legal problems.

However, a month ago, with the entry into force of Organic Law 1/2023, of February 28, known as the reform of the abortion law, the persecution of this practice has hardened.

Article 32 of the aforementioned law dedicated to the "prevention of surrogacy or substitution", in point two states: "Information will be promoted, through institutional campaigns, of the illegality of these behaviors, as well as the nullity of the contract by which the pregnancy is agreed, with or without price, in charge of a woman who renounces maternal filiation in favour of the contracting party or a third party".

Next, article 33 of "prohibition of the commercial promotion of surrogacy", states that "the legitimized public administrations [according to the advertising law] will urge legal action aimed at the declaration of illegality of advertising that promotes commercial practices for surrogacy and its cessation".

What does medical ethics say about surrogacy?

It has been in this last Code of Medical Deontology (to which this medium has had access), which tomorrow Thursday is presented in the Congress of Deputies, where doctors have referred to this practice in articles 65.1 and 65.2. In the first they reject surrogacy in which there is an economic benefit and in the second case it admits it, when it is altruistically.

Article 65.1 states: "Surrogacy with economic consideration is contrary to Medical Deontology. The commercialization of women's bodies violates their dignity."

While point 2 of the same article states: "Pregnancy by altruistic substitution is not contrary to Medical Deontology provided that the dignity of the woman and the best interests of the child are preserved, with the appropriate regulation and control of the National Commission of Assisted Human Reproduction".

What does the jurisprudence of the Supreme Court say about surrogacy?

The Civil Chamber of the Supreme Court has rejected surrogacy when asked about it. The last sentence of the plenary of the Civil Chamber of the High Court on this case is from a year ago, where it dismissed the petition of a woman who wanted to register her son as her own in the Civil Registry of Spain.

In this case, the baby was born in Mexico, the result of a surrogacy contract without the Spanish woman who hired the service providing any genetic material. That is, he did not offer his egg. In this way, the Public Prosecutor's Office appealed a first ruling that gave the reason to the woman and won in the Supreme Court, which reiterated a doctrine that already appears in a 2013 judgment.

"These contracts are null and void under Article 10 of the Law on Assisted Reproduction Techniques and seriously violate the fundamental rights recognized in our Constitution and in the Convention on the Rights of the Child," the ruling says.

The Supreme Court declares that the surrogacy contract of the case under trial entails "damage to the best interests of the child and exploitation of women that are unacceptable". He adds: "Both are treated as mere objects, not as persons endowed with the dignity proper to their status as human beings and the fundamental rights inherent in that dignity."

How are families formed by this procedure if it is prohibited?

In several ways. In the same Supreme Court ruling that we have already pointed out, the High Court explains the exit that remains when the child has already been born. This necessarily involves protecting the interests of the child, as the best interest, from the point of view of the law and the interpretation of the rules.

Thus, the satisfaction of the best interests of the child in the case judged by the Supreme Court leads to the recognition of the filiation relationship to the intended mother must be obtained through adoption. This solution satisfies the best interests of the child, as required by the European Court of Human Rights, but at the same time seeks to safeguard the fundamental rights that the aforementioned court has also considered worthy of protection, such as the rights of surrogate mothers and children in general.

Thus, in the case judged by the Supreme Court a year ago, the exit given to the mother was as follows: "To urge the General Directorate of the Family and the Child of the Community of Madrid the processing of the file of guardianship or foster care prior to the adoption of the child and, declared filiation by adoption, register the minor in the Civil Registry with the surnames that were imposed on the minor at birth, as is the case as a subsequent request".

It is clear from the judgment itself that the claimant will have easy access to this adoption of the child, since the judges consider it established that the child is integrated into the family.

But most of the cases do not reach the Spanish courts, since they are resolved by virtue of the route opened with the Instruction of October 5, 2010, on the registration regime of the filiation of those born through surrogacy, which allows in certain cases the registration of minors subject to commercial transaction in the civil registries of consulates abroad. Once the mother and child born by surrogacy arrive in Spain with nationality and filiation already registered, there would be no crime to prosecute because it would have already been legalized.

How is it possible that there is a reality so far removed from justice?

This surprise was already expressed by the Bioethics Committee of Spain in its Report on ethical and legal aspects of surrogacy. Assuring that "the nullity of these contracts should be given true legal effect, so that it is also applicable to those concluded abroad."

The Government's advisory body on Bioethics issues then assured, the report is from 2019, that it was necessary "to promote at the international level a common regulatory framework that prohibits the conclusion of these contracts", guaranteeing for this "a safe transition that avoids the unprotected children resulting from the processes of international surrogacy in which several Spaniards may currently be immersed".

However, on this practice there is no unanimity in the parliamentary arc or, at least, there was not in a clear way. The parliamentary group Citizens reopened the debate on its possible legalization with a legislative proposal that did not prosper.

Finally, is it possible to be a mother at 68, which Obregón has?

In Spain there is no legal age limit to be a mother or father. Yes, there is regulation that establishes limits to undergo assisted reproduction treatment, but where there is only a clear limit below, as explained by Luis Martínez, an expert in assisted reproduction.

In public health, the maximum age to undergo this type of treatment is 50 years in most autonomies, because, as Martínez recalls, they are autonomous competences. Within the private clinics there is "an unsigned agreement" not to implant any egg or submit to any assisted reproduction technique to women over 50, although the expert recognizes that there are centers that have raised that age ceiling to 55 years.

But, in any case, these limits do not affect the decision just taken by the actress and presenter Ana Obregón because, effectively, in Spain there is no age limit to access maternity or paternity.

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• Ana Obregon
• Surrogacy
• Supreme Court
• United States
• Congress of Deputies
• Surrogacy