Reality is always stranger than fiction and this aphorism also applies to Law. This is demonstrated by the latest news regarding Ana Obregón, a case that has stirred the interest of society like few others and has highlighted the complexity of Family Law.
What is posed these days seems typical of a laboratory question, of an academic lucubration. And yet, it has been raised in reality. Is it possible in Spain to be the mother of your child’s child through post-mortem fertilization through the surrogate motherhood technique? The answer is definitely no.
Let’s go by parts. In Spain, surrogate motherhood is prohibited. The filiation of the child is determined by the birth: the woman who gives birth is the mother. On the other hand, post-mortem fertilization with the man’s genetic material is allowed, as long as he has given written consent in order to complete the paternity project started with his partner and suspended due to the man’s death, regardless whether or not they were married.
Post-mortem fertilization is also allowed as a procedure to have offspring from the man if he gave his written consent, whether he was a husband or a common-law partner, and regardless of whether they had started a paternity project before the death. In any case, there is a period of twelve months after the death of the man to use the reproductive material.
And to finish unraveling the initial question, it must be emphasized that in Spain descendants cannot be adopted. Therefore, a grandmother cannot adopt her grandson, only guardianship is possible.
Now the question is what happens when the surrogate motherhood process is legal in the country where it was carried out. Should Spain accept the effects of foreign legality? Does it become legal what for the purposes of our legal system is not? The answer is it depends.
Should Spain accept the effects of foreign legality? Depends
It is necessary to start from the premise that Spanish criminal laws apply to events that occur in Spanish territory. Therefore, if the surrogate motherhood process, with the particularities of the case discussed, has not been carried out in Spain and has been carried out in a country where it is legal, no crime has been committed in our country.
In the United States, surrogacy is allowed in most states and each has its own rules. The use of the semen of a deceased man is also legal in the North American country and its use is not limited exclusively to the partner of the deceased, as is the case in Spain.
In the United States, the process of surrogate motherhood is controlled and finalized with a court ruling, issued by the competent Family Court of the place of birth of the baby. After this judicial process of filiation, the sentence declares that filiation of the born in favor of the mother and/or parents (those who commission the gestation). Said sentence is registered in the Spanish Consular Registry of the country in which the child was born and displays all its effects from that moment on in Spain. The person born is Spanish, with all the effects inherent to said declaration, and the corresponding passport is issued.
Spain cannot refuse to register a sentence that declares the filiation of that child born by virtue of said technique in a country where it is legal. It may or may not be criticized, but it is the legality that Spain must comply with: the Civil Registry Law regulates which foreign decisions have access to the Spanish Civil Registry to become a sufficient title.
In countries where surrogate motherhood is legal but the process does not culminate in a filiation sentence, in the case of Ukraine, Mexico or India, problems arise. In these countries, an administrative resolution is obtained but there is no access to the Spanish Consular Registry, leading the intending parents to legal proceedings in Spain. As long as the genetic material belongs to the male, parentage is declared with respect to the father, and the mother has to adopt the child. However, if the genetic material does not belong to any of them, registration will be impossible, and from this arise another series of problems that it is not feasible to address now.
But let’s return to the issue that concerns us and that has spilled so many rivers of ink. The information that has been revealed raises new legal questions. The first: if the newborn is biologically the daughter of her deceased father, but she only has her maternal affiliation declared, does she have the right to exercise in Spain that her paternal affiliation be declared? This is important because she, in this way, would hold inheritance rights from her father and with respect to her paternal family.
The second: could the paternal family judicially request visits and stays in their capacity as grandparents, uncles or relatives? And for this to be the case, could the grandfather and paternal uncles request the paternity of their deceased son or brother?
At the moment, these doubts arise, but surely not the only ones.
#doubts #Obregón #case