The Spanish Supreme Court Strongly Condemns Surrogacy

April 08, 2022

In a judgment, the Chamber describes as “an attack on human dignity” the practice of paying for a woman to be a surrogate and give birth abroad to a child who will reside with a Spanish family. This judgment was taken at third instance in the context of a trial.

A child was born through surrogacy in Mexico, for the benefit of a Spanish woman, who had not provided her own genetic material – and who is therefore not the biological mother of the child – at the end of a contract negotiated by a specialized agency.

The Civil Registry refused to register the child and a Madrid court upheld the refusal, and the Madrid High Court reversed the refusal at second instance. The judges acknowledged that the surrogacy contract is null and void but that the consequences - the birth of the child – “does not violate Spanish public order.”

The child lives with the petitioner and her parents. According to the Madrid court, she “has a stable and well-paid job, meets the needs of the child in terms of education and medical care” and her real interest, therefore, “is to preserve the ties made in this family unity and stability which integrates and reinforces the possession of the state.”

The Crown took the case to the Supreme Court and the First Chamber overturned that judgment with a harsh ruling against this type of surrogacy agencies and contracts, although it granted this family a way out:

“The satisfaction of the best interests of the minor in this case means that the recognition of the bond of filiation with the commissioning mother must be obtained by adoption. He therefore understands that the solution is for the woman to adopt the child born in Mexico in 2015 by surrogate through an agency. Which is what Madrid's 77th Court initially said.

The judgment reaffirms that these actions involve an attack on the best interests of the child and an exploitation of women which is “unacceptable” and treats them as “mere objects.” Adoption is a solution that meets the best interests of the child.

The explanatory note is instructive, as it clearly details grounds that should be obvious to all: “Supreme Court rules that surrogacy contract in court case involves harm to child’s best interests and exploitation of the woman that are unacceptable. It is also notable that in times of advanced feminism, such reasoning is not better understood.

The woman and child are treated as objects of contract

The Court continues: “Both are treated as mere objects, and not as persons endowed with the dignity proper to their status as human beings and the fundamental rights inherent in this dignity. The pregnant mother is obliged from the outset to renounce the child she is going to bear and renounces before birth, even before conception, any right derived from her maternity.”

It is the culmination of the undertaking to insert disconnection between the sexual act, conception, pregnancy, and motherhood by the various revolutions in matrimonial law and sexual life: first divorce, then the introduction of contraception, abortion, and finally all the techniques of medically assisted procreation (PMA).

But that’s not all: “(The woman) is forced to undergo medical treatments that put her health at risk and carries additional risks for future pregnancies resulting from sexual intercourse; she waives her right to privacy and medical secrecy.” This point is then detailed.

“Issues such as termination of pregnancy or embryo reduction, how the delivery will take place (by caesarean section), what she can eat or drink, her lifestyle is fixed, sexual relations are prohibited, her freedom of movement and residence is restricted,” in other words, it is the contract – or the “employers” – who decides everything, or almost everything.

The Court continues: “The future mother is obliged to submit to unannounced random tests for drugs, alcohol, or tobacco at the request of the woman who hires her [the employer]; and finally, the grantor is responsible for deciding whether or not the expectant mother should be kept alive in case she suffers a life-threatening illness or injury.” That's what the contract says.

In short, limitations are imposed on the personal autonomy of the pregnant woman and on her physical and moral integrity which are incompatible with human dignity. Moreover, the future child, who is deprived of the right to know his or her origins, is treated as an object of exchange.

In most cases, moreover, women who submit to this type of contract to have a baby for another couple come from disadvantaged backgrounds, recalls the Supreme Court.

“It does not take a great stretch of the imagination to get an idea of ​​the economically and socially vulnerable situation in which a woman finds herself when she agrees to submit to this inhuman and degrading treatment which violates her most basic rights to privacy, to physical and moral integrity, to be treated as a free and autonomous person endowed with the dignity of every human being,” the judges say.

And behind all this, they add, there are agencies that profit from this trade which, denounces the Supreme Court, “operate freely in our country and advertise their activities.” Judges even cite celebrities and personalities who advertise the birth of children through this system.

“Frequently, news is published about famous people who announce the ‘brought to Spain’ child ‘as a result of surrogacy.’ The verdict contains a direct rebuke to the “competent authorities for the protection of minors which show no initiative to ensure the protection of children, if only to check the suitability of the sponsors,” the judges criticize. The default, they denounce, is impunity.

The rights of the child born through the surrogacy system are also violated, according to the Supreme Court. “The future child, who is deprived of the right to know his origins, is 'objectified' because he is conceived as the object of the contract, which the surrogate mother is obliged to give to the sponsor,” indicate the judges

However, they add that “the reality is more complex” and that is why they are opening the door to adoption. In any case, adds the Supreme Court at the end of its judgment, women and children are treated in surrogacy processes as “a mere commodity and without even verifying the ability of the sponsors to be recognized as holders of parental authority over the child born from this type of surrogacy.”