The Supreme Court has issued a ruling that closes the door to a ruling from a foreign court making it easier for a family to register children born through surrogacy in Spain. Civil judges have rejected a couple’s request to, in practice, legalize the contract by which they had obtained two children through surrogacy in Texas since, they alleged, a United States court had allowed it. The Supreme Court recalls that this is not legal in Spain and that a contract like the one they signed to obtain two babies “entails exploitation of the woman and harms the best interests of the minor.”
In recent years, this same court of the Supreme Court has issued several rulings that close the door to legalizing, in some way, surrogacy contracts signed by Spanish families in countries such as Ukraine or Mexico to obtain children. In practice, the judicial possibility of adopting children and pursuing the “best interests of the minor” has allowed their situation to be regularized when they return to Spain with the baby.
The case that the room has studied is that of a couple who in October 2020 had two babies through the surrogacy method at St. Luke’s Health hospital in Woodlands, Texas. Barely a month later, a Béxar County court awarded custody of the children to the family that had paid for them. The next step, once back in Spain with the children, was to go to the courts of Cádiz so that this US ruling would have effects within the national territory and recognize the children as theirs.
No Spanish judge who has studied the case has ruled in favor of this couple. Neither the court, nor the Provincial Court of Cádiz nor now the Supreme Court. The couple’s main argument was that not agreeing would leave the children “in a situation of vulnerability and exposure” since it would “expose” the reality of their birth.
The Supreme Court answers that “what violates the dignity and free development of the personality of both the surrogate woman and the minors is the conclusion of the surrogacy contract itself, in which the woman and the minor are treated as mere objects.” Surrogacy, the judges recall, “objectifies” the minor since “he or she is conceived as the object of the contract.”
The international legal cooperation regulations, the judges recall, do not allow the validation of foreign sentences that are “contrary to public order”, and in this case surrogacy is clearly prohibited by Spanish regulations.
Adopt or foster children
Surrogacy, the magistrates add, “attacks the moral integrity of the surrogate woman and the child, who are treated as things susceptible to commerce, deprived of the dignity of the human being.” It also threatens the physical integrity of the biological mother “who may be subjected to aggressive hormonal treatments to get her pregnant.” “It entails exploitation of women and harm to the best interests of the minor.”
The Supreme Court dismisses the appeal and remembers what the Bioethics Committee already said seven years ago: “A person’s desire to have a child, no matter how noble it may be, cannot be realized at the expense of the rights of other people.”
As in previous cases, the Supreme Court explains that the solution for this couple is to apply Spanish regulations and establish their filiation “by determining the paternal biological filiation, adoption, or allowing the integration of the minors into a family nucleus through the figure of family foster care.”
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