Are you my mother? The Spanish Supreme Court and surrogacy tourism

In a divided opinion (4 dissenting judges out of 9) the Civil Chamber of the Spanish Supreme Court has ruled against the inscription in favor of the intending fathers of children who are born as a result of a surrogacy agreement formed abroad. This conflict is one more in the already long list of cases caused by the phenomenon of surrogacy tourism (there are currently 4 cases pending before the European Court of Human Rights) but I think it contains some interesting features that make worth delving into it (an updated and thorough report on the legal regime of surrogacy in EU Member States can be found here).

The case involved a married gay couple from Spain (Ramón and César) who traveled to California in 2008 circumventing the current ban on surrogate motherhood in Spain. The woman who acted as the surrogate gave birth to twins that were registered as sons of the intending couple in compliance with the rules and procedures established in Section 7630 of the California Family Code (it is unknown at this point whether Ramón or César donated the sperm and, if they did, who is the genetic father). Subsequently the couple attempted to register the US birth certificate in the Spanish Consular Registry in Los Angeles but the Consul rejected it arguing that the recognition of a foreign legal act should be made in compliance with Spanish Law, and that was not the case. As I said, in Spain, surrogacy agreements, irrespective of its commercial or non-commercial nature, are legally considered null and void and legal motherhood corresponds in any case to the gestational carrier (article 10 of the Assisted Reproduction Act of 2006). That decision ignited a complex legal battle that has now come to an end, although the couple has announced their intention to make an appeal before the Constitutional Court.

Beyond the many nuances and complexities involved in the case, what is primarily at stake is the scope of the control that a domestic authority may exert over a foreign legal document that certifies an act that, permitted in the destination country, is forbidden in the country of origin. This is not a “conflict of laws” issue – the discussion is not about the applicable law- but rather one of “recognition” of a foreign legal act – the US birth certificate.

According to the Supreme Court, Spanish authorities should control not only the authenticity of the document, but also whether the certified act is against the Spanish international ordre public. Now, as the Supreme Court acknowledges, a requirement of full compliance with every aspect of the domestic legal system would make it almost impossible for people to effectively interact across jurisdictions. However, there is a threshold for recognition that is set by the most important values, principles and rights enshrined in the Spanish Constitution and in the international covenants on human rights ratified by Spain. And it happens, the Supreme Court argues, that surrogate motherhood is a form of hideous commodification that compromises the dignity of women and children. This assessment is supported, so continues the Supreme Court, by the fact that a majority of countries in Europe and elsewhere make surrogate motherhood unlawful.

Being that the argumentative core of the decision, it is interesting to mention two other considerations made by the Court. The most pressing argument put forward by the couple has been that the inscription is the means to secure the “best interests of the children” in accordance with article 3 of the Convention of the Rights of the Child (1990) that states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. This was also the argument employed by the Spanish Administrative Agency in charge of Official Registries when overruling the decision made by the Consulate, and is now a key element in the Supreme Court dissenters’ opinion.

The majority of the judges, however, contend that the “best interests” criterion is not the sole factor to be taken into account. Judges should also ponder the State’s interest in preventing the commodification of children and motherhood. But more strikingly, the Supreme Court argues that it is not obvious that it goes in the best interests of the twins to be legally declared as the sons of Ramón and César and not of the surrogate mother. It is striking, in my view, to argue along those lines when the surrogate mother is a woman who has relinquished her motherhood and the intending parents are not only willing to be the parents, but, most importantly, are the “social” fathers.

The second remarkable point is the Court’s mentioning of the lack of connection between the couple and the United States. They went to California, says the majority, just for the sake of doing something illegal in Spain (a subtle way of saying they committed a “legal fraud”). What can be implied from that argument? Suppose the situation were one in which a heterosexual couple had been living in the United States for a while (maybe one of them is a US citizen and the other is of Spanish nationality legally residing in the US) and decide to enter into a surrogacy agreement and then settle in Spain with their offspring. I venture that in such case there will be less reluctance to admit the Californian birth certificate before the Spanish Civil Registry. If my conjecture has some plausibility, then there is some normative work done by the idea of those individuals belonging to a community in which surrogate motherhood is condemned and not, or not only, a moral reproach to the act itself for its exploitative or undignified character. Because if the problem is women’s dignity or exploitation (and the Spanish Supreme Court, with its decision, has not been humble enough to presume that Californian authorities have been provided with the legal safeguards to prevent it) the fact that the intending parents are more or less linked to the place in which the act is permitted seems inconsequential. Although, in the terminology coined by Glenn Cohen, this is not a neat “Murder Island case”, the communitarian justification may be more robust if the surrogate mother were a Spanish woman who travelled with them from Spain (which I tend to think is not a legal possibility nowadays).

Is there any open door left by the Supreme Court to Ramón and César? Yes: the initiation of an adoption procedure of their(?) already 6 years old children. In the meantime, the Spanish Constitutional Court may have the last word…

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