The fact that the USA is chosen by Spanish families for the Surrogate Motherhood Process is not a whim, but rather they have chosen the U.S. for the assurance and security of knowing the birth of their child will not bring on additional legal problems or add to the stress that is inherent in a procedure of this nature.
In Spain, it is illegal to conduct a surrogate motherhood or rent-a-womb process, as stipulated in article 10 of Law 14/2006 on assisted reproduction techniques, which literally states: “Void from its inception is any contract agreeing gestation, with or without a price, by a woman who renounces her maternal rights l affiliation? in favour of the contracting party or a third party. The maternal rights of children born out of surrogate gestation is determined by birth. An exception is the possible legal action claiming paternity by the biological father, in accordance with general regulations.”
On 5th October 2010, the General Directorate of Registries and Notaries of Spain issued an Instruction on the conditions for registering the parental rights of those children born by a gestational surrogate outside Spain,. It requires that prior to their registration, that a judicial ruling by a Competent Court be presented before the Civil Registry Official. That judicial ruling is exclusively issued by some States of the USA- and shows the legality of the pregnancy and the willingness of the surrogate to relinquish parental rights to the child she has carried. It shows that she carried the pregnancy to her full knowledge and agreement and that she was not subject to deception, violence or coercion.
To register the birth in Spain, the foreign (U.S.) judicial ruling must be presented to the Spanish Civil Registry. The Spanish Civil Registry Official shall check, as a requirement prior to registration, whether the U.S. judicial ruling can be acknowledged in Spain, verifying:
1. Official authenticity of the foreign judicial ruling and any other documents being presented.
2.That the Court of origin based its international judicial competence on criteria equivalent to those contemplated by Spanish legislation.
3.That the procedural rights of the parties have been assured, in particular those of the pregnant woman.
4.That there has been no violation of the best interest of the minor and the rights of the pregnant mother. Verifying that the latter’s consent has been given freely and voluntarily, without incurring in error, fraud or violence and with sufficient natural capacity.
5.That the judicial ruling is firm and the consents given are irrevocable.
The above Instruction opens the way to facilitate registration at the Spanish Civil Registry of those born by surrogacy in a country where said ruling can be issued, specifically the USA. And more simply, registration is being conducted directly through the Spanish Consulate in certain States of the USA where surrogate motherhood is legal, without having to resort to exequatur, given that the judicial ruling issued by the Court is derived from a procedure comparable to Spanish Voluntary Jurisdiction Proceedings.
The only country issuing a parental rights through a judicial ruling, an indispensable requirement for the child to be recognized as Spanish and the child of the intended or contracting parents, are certain states within the USA, which has laws that protect this practice, and where it is legalized and normalized. This is why, every year hundreds of Spanish families travel to North America and to a greater extent, to the State of California, as that is where broader legal coverage is provided, as well as obtaining the above ruling prior to the birth of the baby, which entails greater security
General Manager of VAE