by Nuria Serra*
On the 4th of December, the Spanish Supreme Court released Judgement 1626/2024 which denies the recognition of a surrogacy agreement conducted abroad, aligning with its established doctrine on the invalidity of surrogacy contracts, as well as, questioning the immorality of the practice.
Case Background
In December 2019, a Spanish couple travelled to Texas to celebrate a surrogacy agreement with a surrogate mother. A Texan district court validated the agreement, and once the children were born, they were registered as the legal offspring of the intended parents in the Texan Civil Registry. Upon returning to Spain, the couple sought recognition of this arrangement through the Spanish courts to register the parentage in the Civil Registry. However, the lower court refused to recognise the foreign judgment, citing Art.46.1 of the Law 29/2015, 30 July, on International Legal Cooperation in Civil Matters, which prohibits recognition of a foreign judgement that violates the ‘orden público’ (public order). The decision was upheld by the Regional Court, and eventually, by the Supreme Court, despite the couple’s appeals on grounds of alleged violation of constitutional principles, such as the right to human dignity and the child’s best interests.
Surrogacy Agreements: a Question of ‘Orden Público’
The Supreme Court’s ruling relies heavily on the principle of ‘orden público’ since it states that surrogacy agreements conflict with fundamental Spanish legal principles and legislation. The Spanish legal framework unequivocally prohibits surrogacy declaring such agreements void for the establishment of parenthood under Art.10 of the Law 14/2006, 26 May, on Assisted Human Reproduction Techniques. Furthermore, Art.33 of the Organic Law 2/2010, 3 March, on Sexual and Reproductive Health and the Voluntary Interruption of Pregnancy, prohibits the promotion of commercial surrogacy, and amendments introduced by the Organic Law 1/2023, 28 February, characterise surrogacy as a form of violence against women (Art.10 quinquies). Finally, the Court emphasises the illegality of surrogacy reminding the couple if the agreement had been conducted in Spain, they could have been incurred in a criminal offence under Art.221 of the Criminal Code, which punishes the sale of children.
The Supreme Court reinforces these statutory prohibitions by highlighting that surrogacy violates the dignity and moral and physical integrity of both the surrogate mother and the child. The Court further underscores the ethical concerns surrounding surrogacy, describing it as a form of commodification of women and children. It states that the practice exploits vulnerable women for commercial purposes, in places such as the United States. However, the Court does not substantiate these claims with empirical evidence from the particular case or general practice. Furthermore, to support the argument that surrogacy is per se exploitative cites European legislation but ignores that the European Union has only condemned surrogacy when the surrogate mother is deceived or coerced into acting as such within the context of human trafficking (Directive (EU) 2024/1712 of the European Parliament and of the Council of 13 June 2024).
Additionally, while the judgement strongly condemns commercial surrogacy arrangements, it overlooks distinctions between altruistic and commercial surrogacy arrangements, such as those permitted in other parts of the US, like New York. The omission raises questions about the scope and rigidity of the Court’s reasoning to define the ‘orden público’, particularly in jurisdictions where altruistic surrogacy operates under apparent ethical safeguards.
The Status of Children Born through Surrogacy in Spain
In addressing the status of children born through surrogacy, Judgement 1626/2024 adheres to the principle of the child’s best interests in allowing the filiation of the children born through surrogacy. However, the children’s best interests principle cannot justify the automatic recognition of surrogacy contracts and the automatic establishment of legal parenthood. The Court reiterates its established doctrine (STS 277/2022, 31 de Marzo de 2022, STS 835/2013, 6 de Febrero de 2014), allowing the intended biological father to establish legal filiation, followed by the adoption of the child by the non-biological parent. Alternatively, in cases where there is no genetic link, filiation may be established through adoption if the child is fully integrated into the family unit. This legal outcome to surrogacy cases complies with the child’s interests to have legal parenthood, as well as, the case law established by the European Court of Human Rights (Mennesson c. France, no 65192/11 (ECtHR, 26 June 2014)).
While the Supreme Court aims to safeguard the child’s best interests, the judgement, far from being a landmark decision, only states past case law and reveals notable gaps on the topic of filiation after surrogacy. For instance, the Court does not explore the complexities that could arise where the surrogate mother remains part of the child’s life. The requirement of full family integration, in cases where there is no genetic link as a condition for adoption, might discourage intended parents from facilitating relationships with the surrogate mother, thereby limiting the child’s right to know their origins. Paradoxically, this situation reinforces the Court’s depiction of the surrogate mother as a mere object in a transactional arrangement, undermining the nuanced realities of surrogacy.
In conclusion, Judgement 1626/2024 reaffirms Spain’s strict prohibition of surrogacy, relying on the principle of ‘orden público’ to deny the recognition of a foreign surrogacy agreement to establish filiation. The Supreme Court’s decision largely reiterates the outcomes of its prior rulings on surrogacy, which questions the novelty and broader relevance of this decision. The judgment missed an opportunity to engage with critical issues, like the compatibility of the ‘orden público’ argument with altruistic surrogacy arrangements or the potential role of the surrogate mother in determining legal parenthood. This decision highlights the need for a more nuanced approach to balance Spain’s ethical concerns with the growing complexities of international surrogacy.
*PhD Candidate, Universitat Pompeu Fabra
