Surrogacy or uterine surrogacy: Why is it illegal in Spain?

Surrogacy or uterine surrogacy: Why is it illegal in Spain?

Since the first Spanish law on assisted reproduction was promulgated in 1988, the contract that regulates uterine surrogacy has been considered null and void. It was formalized in a lucrative or altruistic way, as affiliation is recognized to the woman who gives birth in our country. The current Law 14/2006, of May 26, on assisted reproduction techniques, maintains this regulation, sanctioning its practice as a very serious offense.


Surrogacy’s current nullity contract is due to several reasons:

  • Ethical reasons.
  • Possible commercialization of the surrogate mother’s body when the contract is formalized for a price.
  • Reasons for reproductive exploitation,
  • or even affectivity given the difficulty of ensuring the rights of the pregnant mother.
  • Furthermore, there isn’t unanimous position between the General Directorate of Registries and Notaries and the Supreme Court regarding the registration in Spain of children born through this medium abroad. This is due, on the one hand, to the fact that it’s not consequential to legally register newborns through a void contract according to Spanish Law, but, on the other hand, the best interests of the minor oblige to protect them. This situation creates legal uncertainty.

In recent years, there have been legislative initiatives in Spain to regulate surrogacy, which have had no results so far, and which have to delimit the scope of a possible regulation, that is, if it would be limited to an alternative to the assisted reproduction techniques only, which would mean that women or heterosexual couples would have access to them, or this possibility would be extended to homosexual couples of men as an alternative to adoption. The position of the Spanish Bioethics Committee is not favourable to a permissive regulation of this kind.

Surrogacy in other countries

First option is the one currently in force in the UK, which prohibits the commercial practice of surrogacy. But is authorized for therapeutic reasons. Being the same gratuitously and giving a series of priorities to the pregnant mother, who has to consent to filiation in favour of the intended parents, but she also has the possibility of retraction.

Special mention for the new regulation of this matter in Portugal. Our neighbouring country has become the third country in the EU with the most permissive legislation in this area, along with Greece and the United Kingdom. This new legislation stands out for allowing foreigners to access it, with the only requirement that it be practiced in a fertility clinic in Portugal. The new Portuguese Law only admits uterine surrogacy for therapeutic reasons. Therefore, couples of homosexual men will not be able to access to it.

In any case, surrogacy is one of the most controversial bioethical issues today. Is very difficult to find a solution that satisfies all parties involved, while respecting all legal and ethical principles.


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