Do female couples have to be married before having in vitro fertilisation treatment with the ROPA technique?
The answer is YES. All-female couples who choose to start a family together do need to be married. The main reason for this is to meet the legal requirements in terms of anonymity of tissue, gamete and organ donations.
As provided for in the Law on Assisted Reproduction 14/2006, this technique can only be used by female couples who are married. The reason for this is that donation of gametes without anonymity is not permitted in Spain. This can be entirely ruled out when gametes are shared within a marriage, but not so outside of marriage.
The aforementioned assisted reproduction law states that when a woman is married to another woman (and they are not legally or de facto separated), the partner who will not gestate may, in accordance with the Law on Civil Registry, agree to her parentage of the child born unto her partner. As such, it is not enough for both partners to simply sign the informed consent for assisted reproduction techniques before the techniques are performed. They must necessarily be married for direct maternal parentage to be established.
What happens if a couple is not married?
As mentioned, female couples who are not married cannot choose to use the ROPA (Spanish acronym for reception of the partner’s oocytes) method.
If a couple wishes to undergo any alternative type of assisted reproduction technique (in vitro fertilisation treatment with donor sperm, embryo adoption, IVF with dual donation, insemination and so on), they can adopt the child as their own and, by doing so, share motherhood. This implies going through a legal adoption process following birth so that the partner who did not gestate can be recognised as the mother of the child/children under equal terms.
Enactment in 2005 of the Spanish law to align heterosexual marriages with homosexual marriages was a milestone in the field of assisted reproduction because it meant that homosexual female marriages were officially recognised. As a result of this, Spanish legislation on assisted reproduction formally provided for these married couples. The same does not apply to civil partnerships between women.
A summary is provided below.
5 legal consideration that lesbian couples must take into account if they wish to have a family
- In order to be able to perform vitro fertilisation treatment using the ROPA method or, in other words, to achieve motherhood shared by two women (one provides the ova and the other receives the embryo that is generated and gestates), Spanish law 14/2006 on assisted human reproduction techniques indicates one essential requirement: the couple must be married. Civil partnerships are not accounted for. This is to avoid gamete donation fraud.
- In order for two women to feature as mothers on vital records, they must necessarily be married. In these cases, both women have the same rights and legal obligations with regards to the child born using assisted reproduction techniques and the child is registered as the offspring of both mothers.
- When two women are married, they do not need to state that their child was born further to assisted reproduction techniques when registering him/her as offspring of both partners (Resolution of 8 February 2017 of the Directorate General for Registries and Public Notaries, Ministry of Justice).
- Assisted reproduction clinics in Spain have to request a marriage certificate from female couples choosing to have in vitro fertilisation with the ROPA method.
- Should the couple not be married, the process could be classed as illegal since, by law, donation of ova and spermatozoa must necessarily be anonymous. Open ova donation is classed as entirely illicit.
There is still some work to be done
Last of all, we must take into account that sexual and reproduction rights are part of our human rights. Article 16.1 of the Universal Declaration of Human Rights states that ‘men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.’
However, we need to go one step further and give married female couples the same status as unmarried female couples in terms of access to certain types of fertility treatment and with regards to recognition of filiation, as provided for by article 14 of the Spanish Constitution: ‘Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.’
- Declaración Universal de Derechos Humanos. Adoptada y proclamada por la Asamblea General en su resolución 217 A (III), de 10 de diciembre de 1948.
- La Constitución española. Título I. De los derechos y deberes fundamentales. Capítulo segundo. Derechos y libertades. Art. 14.
- Ley 13/2005, de 1 de julio, por la que se modifica el Código Civil en materia de derecho a contraer matrimonio (BOE 157, de 2 julio de 2005).
- Ley 14/2006, de 26 de mayo, sobre técnicas de reproducción humana asistida.
- Ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo de las personas.
- Ley Orgánica 2/2010, de 3 de marzo, de salud sexual y reproductiva relativa al sexo de las personas.
- Ley 25/2010, de 29 de julio, del libro segundo del Código Civil de Cataluña, relativo a la persona y la familia.
- Ley 15/2015, de 2 de julio, de la Jurisdicción Voluntaria (BOE nº. 158, de 3 de julio de 2015).
- Ley 19/2015, de 13 de julio, de medidas de reforma administrativa en el ámbito de la Administración de Justicia y del Registro Civil (BOE nº. 167, de 14 de julio de 2015).
- Ley 2/2016, de 29 de marzo, de identidad y expresión de género de igualdad social y no discriminación de la Comunidad de Madrid. (BOE nº. 169, de 14 de julio de 2016) Madrid.
- Ley 23/2018, de 29 de noviembre, de igualdad de las personas LGTBI (BOE nº. 10, de 11 de enero de 2019). Valencia.