Recently the Supreme Court has had the opportunity to rule again on the recognition of a US judicial resolution in which the filiation of two minors was recognized in favor of the commissioning parents, after the conclusion of a surrogacy contract that obliged the pregnant mother to renounce, before conception, any right derived from her motherhood.
The ruling, dated December 4, 2024, once again reiterates the criteria already followed in previous resolutions, analyzing in detail the reasons that determine the denial of recognition:
– Inconsistency of the First Instance order that denies the exequatur: The reason alleged by the representation of the commissioning parents is rejected, and the Court indicates that there is no violation of any rule, which in its case should have been the subject of an extraordinary appeal for procedural violation.
– Violation of the principle of personality development: The reason alleged by the representation of the commissioning parents maintains that the minors are left in a situation of vulnerability towards third parties, since it would determine to reveal the circumstance of their birth – surrogacy – that It should be reserved for your inner circle.
The reason is again rejected. The Court once again reinforces its position and points out: “what violates the dignity and free development of the personality, both of the surrogate woman and of the minors (…) is the conclusion of the surrogacy contract itself, in which the “Woman and child are treated as less objects.” Likewise, the ruling maintains that surrogacy represents a form of violence against women in the reproductive sphere, reiterating the nullity of surrogate pregnancy contracts.
In this sense, the Court must not rule ex novo on a specific fact, but rather the decision must be limited to the decision of another court, in this case American, that can be recognized in the Spanish legal system. In this case, we are faced with one of the objections provided for in art 46.1.a) of Law 29/2015, on International Legal Cooperation, which states that foreign judicial resolutions that are contrary to public order will not be recognized.
It is understood that the recognition of the resolution would attack the Spanish OPI, since the validation of these practices would mean the validation of an attack against the moral integrity of the pregnant woman and the child, turning both into objects of consumption. Likewise, the High Court highlights the non-existence of a right to found a family, much less the materialization of this desire must be carried out at the expense of the rights of other people. In fact, the Court emphasizes the lack of accreditation by the applicants of the integration of minors into a stable family nucleus, and there are elements that cast doubt on the existence of this stability.
– Violation of the principle of non-discrimination: The applicants allude to discrimination against minors due to their nationality (American), and their right to be registered in the Civil Registry in accordance with their paternity must be respected.
The Supreme Court’s response is forceful: There is no discrimination based on nationality, since non-recognition of the foreign resolution would not prevent the parents, if they are the biological parents, from taking action to claim paternity with respect to the minors. Furthermore, such discrimination cannot exist, taking into account that, if it had occurred in Spain, we would be dealing with conduct classified in the Penal Code.
– Violation of the higher principle of protection of minors: The applicants argue that the denial of recognition does not respect the interest of minors, alluding to several rulings of the ECtHR that allude to the impossibility of obtaining recognition of the relationship of minors with their intended parents has a negative impact on their children.
The Court ratifies the position of the Spanish legislator, which does not deprive parents of the possibility of being recognized, either through the action of recognition of filiation in the case of biological paternity, or through the integration of minors into the family nucleus through of foster care, this being a solution that satisfies the best interests of the minor, without undermining the rights of pregnant mothers and children in general.
The Public Prosecutor’s Office itself could, where appropriate, take the pertinent actions in this regard, if there is a true integration of the minors into a family unit.
Likewise, the Court assumes that the protection of the interests of minors must be weighed taking into consideration the values assumed by society and that inspire our legal system, reiterating that if an almost automatic recognition of surrogacy contracts were applied in Spain, would mean facilitating its celebration for intermediation agencies, placing pregnant mothers and minors born as a result of this practice as objects of commerce, without even verifying the suitability of the commissioning parents.
In short, the Supreme Court reinforces the position already held in previous resolutions, reiterating the nullity of surrogacy contracts and the impossibility of their having effects in Spain, since otherwise it would mean the validation of conduct contrary to human rights and specifically to the rights of women and children.
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