The Spanish Supreme Court on Surrogacy Contract and Public Policy
This post was written by Ottavia Cazzola, a PhD candidate at the University of Barcelona Barcelona participating in Action Grant “Towards Universal Parenthood in Europe (UniPAR)” (JUST-2023-JCOO; Project ID: 101137859).
On 4 December 2024, the Spanish Supreme Court issued a decision stating that the recognition of a foreign judgment establishing filiation regarding the commissioning parents of two children born via surrogacy in the United States is contrary to Spanish public policy.
Facts
A Spanish couple entered into a surrogacy agreement in Texas (US) with a surrogate and her husband. On 23 July 2020, the 73rd Civil District Court of Bexar County (Texas) issued a decision validating the agreement and stating that the commissioning parents “shall be the parents of any child to whom the co-defendant (the surrogate) …gives birth to, by virtue of the surrogacy agreement”. This decision also established inter alia the commissioning parents’ right to immediate custody and access to the children after their birth.
On 29 October 2020, two children were born. Almost one month after their birth, on 20 November 20, the 73rd Civil District Court of Bexar County (Texas) issued a second decision stating that the commissioning parents were the parents of both children and instructed the Texas Department of State Health Services and the Civil Registry to issue original birth certificates naming the commissioning parents as the parents of both children.
Legal Background
Once back in Spain, the commissioning parents requested the recognition of the 20 November American judgment. In accordance with the provisions of the Spanish Act on Cooperation in Civil and Commercial Matters a special exequatur procedure is required for the recognition of foreign judgments. It is done by means of a contradictory procedure with the intervention of the public prosecutor’s office.
The First Instance Court dismissed the claim stating that the recognition of the foreign judgment was not possible since surrogacy contracts are forbidden under Spanish law and therefore are contrary to Spanish public policy. The Court stated that the commissioning parents had intentionally traveled to the United States in order to circumvent Spanish law.
The first instance decision was appealed on grounds that the best interests of both children were being infringed by not recognizing the American judgment. The Court of Appeals sustained the decision of the First Instance Court and stated that “it is within the framework of the public policy where the best interest of the child must be satisfied and not on the fringes of it or in contravention or alteration of it”.
The commissioning parents appealed once again but this time to the Spanish Supreme Court, which ruled on two issues: (i) whether the recognition of the 20 November American judgement violates Spanish public policy and (ii) whether the non-recognition of the foreign judgment infringes the best interests of the children involved.
Judgment
The Spanish Supreme Court considered that the 20 November American judgment was contrary to Spanish public policy and could not be recognized. The reasons why are as follows:
First, it considered that the surrogacy contract itself is contrary to Spanish international public policy. In the words of the Spanish Supreme Court:
what violates the dignity and the free development of the personality, both of the surrogate and of the children born under the surrogacy agreement, is the conclusion of the surrogacy contract itself, in which the woman and the child are treated as mere objects.
Furthermore, “the claim that a contract, even if “validated” by a foreign judgment, can determine filiation is in itself contrary to public policy”.
The Spanish Supreme Court continues stating that in cases like the one at hand,
the pregnant woman is obliged from the beginning to give up the child she is gestating and renounces to any right derived from her maternity before delivery, even before conception. The future child, who is deprived of the right to know its origins, is “objectified” because it is conceived as the object of the contract, which the pregnant woman (and, in this case, also her husband) undertakes to deliver to the commissioning parents.
Emphasizing this, the Spanish Supreme Court elaborates on why surrogacy undermines the dignity of the surrogate and the child: by commodifying gestation and filiation and enabling third parties to negotiate and exploit women that may be in a poor financial situation, and as a consequence of this, creating a gap in which only those with sufficient funds may gain access to this kind of practices.
Second, under Spanish law, surrogacy is a form of violence against women. It is stated as such in the Spanish Sexual and Reproductive Health and Voluntary Termination of Pregnancy Act. Furthermore, the Spanish Supreme Court points out that the European Parliament’s resolution of 17 December 2015 on the Annual Report on Human Rights and Democracy
condemns the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments.
Third, the “right to be a parent” does not exist under Spanish law. The Spanish Supreme Court refers to Paradiso and Campanelli v. Italy when stating that Article 8 of the European Convention on Human Rights does not guarantee the right to found a family and, that the mere desire to become a parent is not protected. To further emphasize this point, the Spanish Supreme Court reminds the parties that “a person’s desire to be a parent, however noble it may be, cannot be fulfilled at the expense of other people’s rights”, quoting the Spanish Bioethics Comity’s 2017 Resolution.
Regarding the best interest of the child, the Spanish Supreme Court, in accordance with its own case law and that of the ECtHR’s, considers that it is sufficiently protected since Spanish law allows the establishment of filiation between the child and the commissioning parent with whom it is genetically connected and/or the adoption of the child when a de facto family relationship exists.
Lastly, the Spanish Supreme Court underlines that this solution satisfies the best interest of the child in concreto but, also takes into account the equally worthy of protection fundamental rights of the surrogate and children in abstracto. These rights could be adversely affected if foreign judgments establishing filiation in cases like the one at hand were easily recognized in Spain, since commercial surrogacy practices, which as already mentioned, are unlawful under Spanish law, would be facilitated.
Comment
The Spanish Supreme Court is clearly stating that a surrogacy agreement categorically contravenes Spanish public policy. The surrogacy agreement in itself is contrary to Spanish public policy since it commodifies filiation and gestation, and by considering the surrogate and the child as objects, violates the dignity of both of them. It also clarifies that the child’s best interest must be considered, not outside or instead of public policy but in the framework of the protection of fundamental rights provided by the public policy exception. Hence, the Court is stressing that, when considering the best interest of the child, other rights, such as the fundamental rights of the surrogate, and those of children in absracto, may not be voided or affected.
In conclusion, from the perspective of the Spanish Supreme Court, a foreign judgment establishing filiation via a surrogacy agreement contravenes Spanish public policy, and therefore cannot be recognized, even by virtue of the principle of the best interest of the child. The children’s best interest is being upheld given that under Spanish law, there are specific procedures for the determination of filiation with all the necessary protection and legal guarantees for the children involved.
Lastly, this is not the first time that the Spanish Supreme Court ruled that surrogacy is contrary to Spanish public policy. It did so before on 6 February 2014, but that case concerned the recognition of a foreign birth certificate. On 31 March 2022 a second decision was issued in which the Supreme Court also stated that surrogacy was against public policy. The case was, however, about the establishment of filiation by means of the Spanish institution of “posesión de estado”, not about the recognition of a foreign judgment or document.