A ruling by the Supreme Court of Spain states that surrogacy exploits the woman who rents her womb and harms the dignity and rights of the children conceived.
The Dec. 9 decision by the country’s First Chamber of the high court determined that “it is contrary to public order” to recognize a ruling by a foreign court (Bexar County, Texas) that validates a surrogacy contract and attributes the paternity of the children born to the intended [contracting] parents.”
The decision is based on the “fundamental rights and constitutional principles” of the Spanish legal system, which include “the rights to physical and moral well-being of the pregnant woman and the child, and respect for their dignity.”
“Surrogacy violates the moral well-being of the pregnant woman and the child, who are treated as things up for sale, deprived of the dignity proper to the human being,” the Supreme Court stated.
This practice also “deprives the minor of his right to know his biological origin” and threatens “the physical well-being of the mother, who may be subjected to aggressive hormonal treatments to get her pregnant,” the ruling explained.
At the same time, the Supreme Court stated that this practice also means “threatening the physical and moral well-being of the minor, given the lack of control over the suitability of the intended parents.”
According to the judges, “a surrogacy contract such as the one validated by the American court’s ruling entails exploitation of the woman and harms the best interests of the child.”
Consent vitiated by payment
The Spanish Supreme Court also pointed out that “surrogacy is a huge business in which the commissioning parents pay significant amounts of money, part of which goes to the surrogate mother.”
This circumstance means that her consent to hand over the child she is gestating in her womb, “given before birth, has been obtained through payment or compensation of some kind.”
Regarding the determination of the best interests of the child in these cases, the Supreme Court pointed out that “it should not be done in accordance with the interests and criteria of the [contracting] parents.”
Nor should it be done because of “the existence of a surrogacy contract and of filiation in favor of the intended parents provided for by foreign legislation.”
The criteria for determining the best interests of the child must be based on “the severance of all ties between the child and the woman who gestated and gave birth to him, the existence of a biological paternal filiation and a family unit in which the child is integrated into,” according to the court.
Finally, the Supreme Court stated that the fundamental rights of mothers and children “would be seriously violated if the practice of commercial surrogacy were to be promoted.”
In the court’s opinion, this “will facilitate the action of surrogacy intermediation agencies, in the event that they could assure their potential clients the almost automatic recognition in Spain of the filiation resulting from the surrogacy contract,” despite violating the rights of the gestating women and the children “treated as mere merchandise.”
The Supreme Court had also previously ruled, in April 2022, against surrogacy.
