• PP Feijóo advocates opening a debate on surrogacy but believes that now "is not the time"
  • Society The Government charges against the surrogacy of Ana Obregón: "It is a form of violence against women"

Surrogacy is a form of "violence against women," according to Spanish law. But a violence that can be overcome with a judicial intervention, either abroad or, if it has not been possible there, in Spain. The figure of 163 registrations of children conceived in this way last year in Spanish consulates reveals that, despite the literalness of the law and the harshness also used by the Supreme Court, the benefit of the child ends up imposing on gestation contracts that are irremediably null.

The situation of surrogacy in Spain is marked by the two instructions of the General Directorate of Registries and Notaries (today of Legal Security and Public Faith) and by two judgments of the Supreme Court.

The balance is as follows: in countries where there is judicial control of the process that ends in an acknowledgement of filiation, access to the register of the Spanish consulate is almost automatic. On the other hand, in countries where the matter is carried out only by administrative means, consular records say no and subsequent judicial intervention is necessary in Spain to establish paternities. In the most common case, the father is recognized after a genetic test, while the non-pregnant woman must follow an adoption process endorsed by a judge who gives her access to the civil registry as a mother.

In the first block is the US. Mecca — and the most expensive place for surrogacy — is California. 100% of the 42 requests at the Los Angeles consulate were dealt with in 2022. Also in Florida, where Ana Obregón has obtained her baby, success is almost assured, with access to the consular registry that avoids paperwork in Spain. Last year there were 10 applications in Miami and all 10 were successful.

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In the other bloc is, for example, Ukraine. The administrative procedure followed therein is not a sufficient guarantee to recognize filiation to the non-pregnant mother. Ukraine has been a popular destination for these cases, although the war curbed the cases. In 2022 there were only four applications, none of which were able to access the Kiev registry. In Turkey the administrative process is not sufficient either: 42 refusals to the 42 requests.

There is also the option of avoiding consulates – Eastern countries with access by roads without border controls – and requesting registration directly in Spain. The process is then that of adoption.

"There is a lot of casuistry according to the country, or even within each country, as is the case of the United States," explains Diego Calvo, an expert lawyer in surrogacy. The lawyer intervened in the case with which a year ago the Supreme Court marked the itinerary that must be followed.

The unanimous sentence was very harsh with surrogacy, "which entails damage to the best interests of the child and an exploitation of women that are unacceptable." In practice, it overturned a judgment that had endorsed fast-track registration taking into account the reality of the family situation, in which the mother had already exercised as such for a long time. The Supreme Court established that the non-surrogate mother, to be recognized as such, had to go through the adoption process.

According to the Court, the rights of the child and the surrogate mother "would be seriously injured if the action of the intermediation agencies in surrogacy were facilitated because they could assure their potential clients the almost automatic recognition in Spain of the filiation resulting from the surrogacy contract, despite the violation of the rights of the surrogate mothers and the children themselves, treated as mere goods, and without even verifying the suitability of the principals to be recognized as holders of parental authority over the child'.

THE DATA

163

INSCRIPTIONS. The children by surrogacy registered in the Spanish consulates in 2022 were 163,.

138

USA. Of the 163, 138 were registered in the US: 42 in Los Angeles, 36 in San Francisco, 20 in Houston, 19 in Chicago, 10 in Miami, 4 in New York, 4 in Washington and 3 in Boston.

249

REQUESTS. In 2022, there were 249 applications for registration of children by surrogacy: 103 from same-sex couples, 89 from opposite-sex couples and 57 single-parent couples.

According to The Trust Project criteria

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