The Supreme Court (TS) has declared that the recognition of a foreign ruling that validates a surrogacy contract and attributes the paternity of the born to the intended parents is contrary to public order because he treats women and children like “things capable of commerce”.
The Civil Chamber points out in a ruling that the fundamental rights and constitutional principles included in the Constitution – among which are those related to the physical and moral integrity of the pregnant woman and the minor – and respect for their dignity integrate that public order that acts as limit to the recognition of decisions of foreign authorities.
«Surrogacy violates the moral integrity of the pregnant woman and the childwhich are treated as things susceptible to commerce, deprived of the dignity of the human being”, warns the High Court, which maintains that, in addition, the minor is “deprived of his right to know his biological origin”, which is contemplated ” in the article of the Convention on the Rights of the Child of November 20, 1989.
«It also threatens the physical integrity of the motherwho may be subjected to aggressive hormonal treatments to get her pregnant,” he adds. Along the same lines, it adds that it can “attack the physical and moral integrity of the minor, given the lack of control over the suitability of the principals.”
The Supreme Court expresses itself in this way in the specific case of a plaintiff who requested recognition of the effects of the sentence handed down by Court number 73 of Béxar Countyin Texas (USA), which confirmed the paternity of the actors under a surrogacy agreement.
“A huge business” in the United States
Along these lines, the Supreme Court emphasizes that a surrogacy contract such as the one that was validated by the ruling of the North American court entails exploitation of women and harm to the best interests of the minor.
The North American court validated the surrogacy contract through two rulings, issued respectively before and after childbirth. Already the first sentence, issued before childbirth, obliged the woman to immediately hand over the child to the intended parentsso the mother could not refuse this delivery once the birth had occurred.
«And it is well-known, and has not been distorted in this case, that in the United States surrogacy constitutes a huge business in which the commissioning parents disburse significant amounts of money, which in part goes to the surrogate mother, so her consent, given before childbirth, has been obtained through payment or compensation of some kind,” explains the high court. .
The First Chamber of the Supreme Court rejects that denying the recognition of the foreign judgment violates the superior principle of protection of minors. The specification of what in each case constitutes the interest of the minor, he explains, should not be done in accordance with the interests and criteria of the intended parents of the surrogacy.
“Treated as simple commodities”
Furthermore, it indicates that the protection of the best interests of the minor cannot be based on the “existence of a surrogacy contract and in the filiation in favor of the intended parents provided for by foreign legislation”: “If such information is true, it must be based on the breaking of all ties between the minors and the woman who conceived and gave birth to them, the existence of a paternal biological affiliation and of a family nucleus in which the minors are integrated.
The ruling concludes that this solution satisfies the best interests of the minorvalued specifically, but at the same time attempts to safeguard the fundamental rights of pregnant mothers and children in general, who would be seriously injured if the practice of commercial surrogacy were promoted because it would facilitate the actions of intermediation agencies in surrogacy.
All of this, he continues, “in the event that they could assure their potential clients of 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 simple commoditiesand without verifying the suitability of the intended parents to be recognized as holders of parental authority of the minor born from this type of pregnancies.
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