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Surrogacy

Surrogacy

Currently, both in Spain and in neighbouring countries we are witnessing a growing phenomenon: use to surrogacy as a new way for people who wish to fulfil their dream of becoming parents. Recourse to surrogacy to become parents is banned in Spain, as set forth in art. 10 of Law 14/2006 on assisted reproductive technology, but it is legal in some countries around the world, such as the United States, India and Ukraine. From the point of view of the Spanish legal system, the problems encountered are varied, both with regard to starting and completing the process, as this must necessarily take place outside our country, and to recognition and registration of these parent-child relationships in our Civil Registry.

In this respect, we have witnessed the obstacles imposed by the authorities when accepting the validity of these parent-child relationships in Spain, culminating in the judgment of the Supreme Court of 6 February 2014 in which the High Court ordered that a parent-child relationship registration be cancelled, as it was established through recourse to a surrogacy arrangement in San Diego (California), and registered in the Spanish Civil Registry in 2009, on the grounds that it violated Spanish public order.

The picture, however, changed radically just a few months later with the Judgment of the ECHR of 26 June 2014 on the Case of “Mennesson v. France”, in which the European Court, in a similar court case heard in France, stated that refusal to recognise the relationship between the children and the intended parents seriously harmed the children, and that it was likely to undermine respect for their private and family life, a right enshrined in art. 8 of the European Convention on Human Rights. This decision completely changed the situation described in Spain, as it prompted not only the fact that parent-child relationships established in this way that have overcome a number of safeguards and that are legal in the country of origin are now recognised, but also the fact that Spanish registration rules must be changed in order to clearly establish the legal framework for such recognition.