Spanish justice, on surrogacy: exploits women and harms children

A recent ruling by the Supreme Court of Spain indicates that surrogacy exploits the woman who rents her womb and damages the dignity and rights of the children conceived.

So it The First Chamber of the High Court has decidedwhich has considered that “it is contrary to public order” to recognize a foreign ruling (from the United States) that validates a surrogacy contract and attributes the paternity of the born to the intended parents.”

The decision is based on “the fundamental rights and constitutional principles” of the Spanish legal system, among which are “the rights to the physical and moral integrity of the pregnant woman and the minor, and respect for their dignity.”

“Surrogacy violates the moral integrity of the surrogate woman and the child, who are treated as things susceptible to commerce, deprived of the dignity of a human being,” the Supreme Court emphasizes.

This practice also “deprives the minor of his right to know his biological origin” and threatens “the physical integrity of the mother, who may be subjected to aggressive hormonal treatments to get her pregnant,” the ruling states.

At the same time, the Supreme Court states that this practice involves “also violating the physical and moral integrity of the minor, given the lack of control over the suitability of the intended parents.”

In the opinion of the magistrates, “a surrogacy contract such as the one that was validated by the ruling of the North American court involves exploitation of the woman and harms the best interests of the minor.”

Consent tainted by payment

The Spanish Supreme Court points out on the other hand that “surrogacy constitutes an enormous business in which the commissioning parents disburse significant amounts of money, which in part goes to the surrogate mother.”

This circumstance means that your consent to deliver the child you are raising in your womb “lent before birth, has been obtained through payment or compensation of some kind.”

Regarding the analysis of the best interests of the minor in these cases, the Supreme Court points out that “it should not be done in accordance with the interests and criteria of the intended parents of the surrogacy.”

Nor “in the existence of a surrogacy contract and in the filiation in favor of the intended parents provided for by foreign legislation.”

The criteria to establish the best interest of the minor must start from “the breaking of all ties between the minors and the woman who conceived and gave birth to them, the existence of a paternal biological affiliation and a family nucleus in which the minors are integrated.” according to the court.

Finally, the Supreme Court understands that the fundamental rights of mothers and children “would be seriously harmed if the practice of commercial surrogacy were promoted.”

In his opinion, this “will facilitate the actions of intermediation agencies in surrogacy, in the event that they could assure their potential clients of the almost automatic recognition in Spain of the affiliation resulting from the surrogacy contract”, despite of violating the rights of surrogate mothers and children “treated as simple merchandise.”

In 2022, the Supreme Court has already ruled in the same sense as on this occasion against surrogacy.