Article published in Món Jurídic, Journal of the Barcelona Bar Association, February–March 2024; available at www.icab.cat
The practice popularly known as surrogacy is not legal in Spain. Recently, a “Face to Face” feature was published in Món Jurídic on this issue. The Women Lawyers’ Committee of the Barcelona Bar Association (ICAB) expresses its disagreement with its content, as it represents a violation of the rights of children and women.
Currently, the most common destination countries chosen by intended parents to find women willing to gestate for non-altruistic purposes are the United States, Ukraine, Mexico, and Georgia. None of these countries guarantees women’s rights. In the very few countries where the practice is altruistic, such as England, it remains residual due to the lack of women willing to take part.
At the international level, regarding children’s rights, the United Nations Convention on the Rights of the Child (CRC) establishes in Article 7 the child’s right to know his or her parents and, whenever possible, to be raised by them. It is beyond doubt that the woman who carries the pregnancy is the mother, even if no genetic material of her own is involved. To deny this reality would be like denying that women who have gestated through egg donation are mothers.
Article 8 establishes the obligation to respect the child’s right to preserve his or her identity, including family relationships. Article 9 requires member states to ensure that children are not separated from their parents against their will, and to maintain personal relations and direct contact with both parents. Article 20 provides that a child may only be temporarily or permanently deprived of his or her family environment if it is in the child’s best interests. Using a surrogate does not respect these guarantees, since the mother is not recognized as such, she is separated from her child, and whether this relationship continues depends on the will of the intended parents. Separating a child from his or her mother, under circumstances of deprivation, does not serve the child’s best interests, but rather the desires of the intended parents. In this sense, the debate is being framed in terms of the child’s best interests once he or she is already in Spain, when in reality it should be framed before conception.
Finally, Article 35 establishes that member states must take all national, bilateral, and multilateral measures to prevent the abduction, sale, or trafficking of children for any purpose or in any form.
In 2018, the United Nations Special Rapporteur on the Sale and Sexual Exploitation of Children issued a series of recommendations to member states in a Special Report. Specifically, she recommended adopting clear and comprehensive legislation prohibiting the sale of children, including in the context of surrogacy. She called for ensuring that the woman who has carried the pregnancy retains parental authority and responsibility at the time of birth, thereby safeguarding her rights, particularly the rights to health and freedom. She also recommended creating courts to review decisions concerning parental authority and responsibilities related to surrogacy contracts, examining the suitability of intended parents both before and after birth, strictly regulating and limiting the financial aspects of all surrogacy contracts, regulating intermediary agencies and economic aspects, regulating the health of the gestational mother, and establishing administrative sanctions and criminal liability for intermediaries.
The Rapporteur acknowledged that wealthier countries are turning to poorer countries to access surrogacy. She therefore proposed a regulatory framework intended to protect women’s rights, aware that punitive approaches are not practical.
Additionally, the Committee on the Elimination of Discrimination against Women (CEDAW) monitors member states’ compliance with obligations arising from the Convention on the Elimination of All Forms of Discrimination against Women. After analyzing the various Concluding Observations on periodic reports concerning the main destination countries for surrogacy, the conclusions on women’s rights are not positive. In Georgia, there are suspicions of human trafficking. In Mexico, legislation is considered inadequate to protect women from exploitation, coercion, discrimination, and violence. In Ukraine, there is a high risk of women’s exploitation due to poverty and lack of job opportunities. Concerns are also raised about women and children born during the war. The United States has not been subject to UN review because it has not ratified either the CRC or CEDAW.
The work of the Hague Conference on Private International Law has, since 2001, sought to legislate collectively on this practice. Despite the time that has passed, no international agreement has been reached to guarantee women’s and children’s rights. This is partly because the various stakeholders who benefit from the practice (mainly intermediary agencies and intended parents) have no interest in moving toward a rights-based model, since in practice this would eliminate profitability for agencies and affordability for intended parents. In this regard, England regulated the matter in 1985 through the Surrogacy Act. It prohibits payment of fees to surrogates and agencies. The woman who carries the child is recognized as the mother. A judicial procedure is required to process the intended parents’ parenthood request, which must be submitted within the first six months of the child’s birth and requires the consent of all parties involved. In the absence of a genetic link (where no genetic material is contributed by the intended parents), the procedure is adoption, with the surrogate’s consent, and one or both intended parents must reside in the country or have lived there for more than a year. In practice, agencies advise against England as a destination, claiming the process is complicated, when in fact it is currently the most respectful of women’s rights.
In the absence of a common international regulatory framework on this issue, Spain, among other countries, currently applies the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, ratified in 1995. Article 4 states that consent to a future adoption may not be obtained through payment or any kind of compensation.
In turn, Spanish Law 14/2006, of 26 May, on Assisted Human Reproduction Techniques, clearly prohibits surrogacy in Article 10, declaring any surrogacy contract null and void, with or without payment, if a woman agrees to renounce her maternal rights in favor of the contracting party or a third party. The law also establishes that maternity is determined by childbirth, safeguarding the biological father’s possible paternity claim.
In 2017, the Spanish Bioethics Committee issued a report on the ethical and legal aspects of surrogacy, concluding that it represents exploitation of women and harms the best interests of children.
More recently, Organic Law 1/2023, of 28 February, amending Organic Law 2/2010, of 3 March, on Sexual and Reproductive Health and Voluntary Termination of Pregnancy, established in Article 32 the prevention of surrogacy, reminding that any such contract is null and void, with or without payment. Article 33 establishes the prohibition of commercial promotion of surrogacy.
Finally, we must not forget Supreme Court Judgment 1153/2022, which addressed a case in which maternity was declared in favor of a woman who was not the biological mother of a child born through surrogacy, and where no genetic material was provided. The judgment held that harm had been done to the child’s best interests and that the woman who carried the pregnancy in Mexico had been exploited, both of which are unacceptable. The ruling indicated that recognition of the maternal relationship should have been granted through adoption, as the solution that best satisfies the child’s best interests, in line with the European Court of Human Rights.
In the opinion of the Women Lawyers’ Committee of ICAB, in light of all the above, a mature reflection on this issue is needed. It is necessary to rigorously inform the public that surrogacy constitutes a form of violence against women, where the commercial aspect casts doubt on consent. Furthermore, it is also necessary to raise awareness of the possible consequences for children once they learn of their origins.
Society must be aware that there is no right to be a father or mother. The reflection we must have as a society is that the desire for parenthood cannot prevail over the fundamental rights of women and children.