New Rules on the Registration in Spain of Births by Surrogacy

Under Article 10 of the Spanish Law 14/2006 of 26 May 2003 on assisted human reproduction techniques, gestation agreements, for a price or not, by a woman who renounces to motherhood in favour of a party to the contract or of a third party are null and void. As a rule, the parenthood of children born by surrogacy shall be determined by childbirth.

In addition, the Organic Law 1/2023, amending the Organic Law 2/2010 on sexual and reproductive health and on the voluntary interruption of pregnancy, expressly defines surrogacy a form of violence against women.

This legal status quo has not prevented individuals of Spanish nationality from resorting to surrogate motherhood in countries where this is permitted. Once the birth occurs, they apply to have the parenthood resulting from the contract registered in the Spanish Civil Register, either by requesting the transcription of a foreign certificate, or by invoking the content of a foreign decision acknowledging the parenthood of the Spanish applicant.

On 5 October 2010, the Dirección General de los Registros y el Notariado (the current Dirección General de Seguridad Jurídica y Fe Pública, a Directorate within the Ministry of Justice) issued an Instruction laying down the conditions for the access to the Spanish Civil Register of births occurring abroad by surrogacy, when one of the parents is a Spanish national.

Pursuant to the Instruction, registration in Spain of such births required a decision by a competent court asserting the full legal capacity of the woman giving birth to the child, the legal effectiveness of the consent given, full compliance with the requirements of the legislation of the country of origin, and the absence of  simulation in the surrogacy contract masking a situation of international child trafficking. In principle, the registration of the foreign decision would need the exequatur.

However, in accordance with the case law of the Tribunal Supremo (Supreme Court, TS), where the decision results from a procedure comparable to Spanish non-contentious proceedings exequatur is not any longer compulsory, i.e., incidental recognition of the decision by the registrar suffices.

A subsequent Instruction of the same Dirección, issued on 18 February 2019 provided additional clarification.

The situation has changed since the Tribunal Supremo (TS) delivered its judgment No 1626/2024 in December 2024, upholding the refusal to recognise a US foreign judgment in a surrogacy case.

The TS held then that what constitutes the interests of the child in a given case must be determined in light of the values espoused by the society, set in the legal rules and in the principles underlying national legislation and international conventions on civil status and child protection.

The protection of the interests of the child cannot simply be based on the existence of a surrogacy contract and on the parenthood accorded by foreign law to the intended parents. Said protection must rather be established having regard, first, to the breakdown of any connection between the child and the woman who gave birth to him, and, second,  to the existence of a biological paternal parentage and of a family nucleus in which the children are integrated.

It must be based on the national and conventional rules in force in Spain, which means it will be granted either by determining the biological paternal affiliation, through adoption, or by way of the integration of the child into a family unit through foster care.

According to the TS, this solution satisfies the best interests of a child, specifically assessed, and safeguards fundamental rights that would be seriously harmed if the practice of commercial surrogacy were promoted.

As a consequence of the decision, in April 2025 the Dirección issued a new Instruction to replace the previous ones. The rules guiding the registration in a Spanish Civil Registry of births of children born to a surrogate mother are as follows:

1. Under no circumstances shall the persons in charge of civil registers (including consular ones) accept, as suitable for the registration of birth and parentage of children born through surrogacy, a foreign registration certificate, a simple declaration accompanied by a medical certificate relating to the birth of the child, or a foreign final judgment.
2. It may be that applicants are allowed by the local authorities to travel with the minor. In this case, once in Spain parenthood shall be established by the ordinary means provided for in Spanish law: biological parenthood, where applicable, with respect to one of the parents of intention, and subsequent adoptive parenthood where it is proved that there is a family nucleus with sufficient guarantees.

It should be noted that pending applications for the registration of the parenthood of children born by surrogacy at the date of publication of the Instruction in the Official Journal, based on the former rules, will be dismissed.