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Is regulation of surrogate motherhood coming closer and closer?

On 3 April 2016 we already published an article in this same magazine about the need for legal regulation of surrogate motherhood in our country. The subject seems to be coming up again with renewed force in the new legislature and we hope that at last some law will see the light that protects everyone’s rights, both of the gestating mothers and the families that wish to have children and, of course, those children.

The attempts to contain surrogate motherhood in Spain have been overtaken by international realities, since many foreign countries allow this technique, which has then been logically taken advantage of by Spanish citizens to have their children outside our borders. There are more than a few places where surrogate motherhood is legal and many of them are countries close to us where the question of protecting the rights of the parties participating is not put up for question.

This practice of having recourse to surrogate motherhood abroad has become something that is not only frequent, as we have already mentioned, but it has also been regulated since 2010 when the DGRN Instruction of 5 October 2010 was issued on the filiation registry system for substitute gestation babies, a regulation that makes registration of the filiation in the Spanish Civil Registry, provided that the authorities confirm that the required guarantees have been met in the foreign country involved.

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This Resolution could be a starting point for drafting a new law since what it does is to establish some minimum requirements for surrogate motherhood abroad to be recognised in Spain. Proceeding on the basis of the conditions required for practices abroad, they should also be required if the technique takes place in Spanish territory.

Some of the requirements of this new Instruction could easily be incorporated into the new law, such as, for example, that the parties have to carry out everything through a court procedure in which a ruling is handed down determining the filiation of the newborn child, that all procedural rights of the parties are safeguarded, particularly those of the birth mother, whose consent must be free and informed, guaranteeing this through some public authority, and that the consent given should be irrevocable.

In regard to the child’s best interests, this should be the guiding principle throughout the law, which is also in accordance with the case law of the European Court of Human Rights on the subject, and it would be necessary to ensure the right of the minor to enjoy a unique identity, as proclaimed by the ECHR.

These are some of the legal requirements that such a law should incorporate, since the aim is definitely to ensure that the rights of all the parties involved are safeguarded. Some additional questions could be added, such as the need for residence in Spain if the desire is not tot to attract people from surrounding countries or others for economic reasons that, in one way or another, would necessarily have an influence. A comparative study of the laws in our surrounding environment might be useful.

It seems that, in these or other terms, the regulation of surrogate motherhood will see the light and with that we can hope for protection of the minors, the birth mothers, and of all the values in play with this technique.

 

Yolanda Dutrey

Yolanda Dutrey es licenciada en Derecho por la Universidad de Zaragoza, doctora en Derecho por la Universidad Complutense de Madrid y Master en Derecho comunitario por la Universidad Complutense.

Tiene numerosas publicaciones en monografías, libros y revistas en diversas materias de Derecho internacional.

Es profesora titular de Derecho internacional privado de la Universidad Rey Juan Carlos en Madrid e imparte másteres de especialización en diversos ámbitos del Derecho.

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