The Supreme Court declares that the recognition of a foreign court decision validating a surrogacy contract and attributing paternity to the intended parents is contrary to public policy
The Supreme Court of Spain has declared that recognising a foreign judgment validating a surrogacy contract and attributing paternity to the intended parents is contrary to Spanish public policy. The case involved a Spanish couple who signed a surrogacy contract in the United States, validated by a court in Texas (United States). The court recognised the intended parents as the parents of the children born through this agreement.
However, the Spanish courts rejected the request for recognition, by virtue of paragraphs a) and d) of Article 46.1 of Law 29/2015 on International Legal Cooperation in Civil Matters, and the prohibition stipulated in Article 10 of Law 14/2006 on Assisted Human Reproduction Techniques. They argued that since the applicants knowingly and voluntarily initiated a process to obtain a child by entering into a surrogacy agreement which is illegal in Spain, the procedure by which the children were conceived is void under Spanish law and that the requested recognition and enforcement were not possible because they were based on a fraud of law which cannot be protected by Spanish law.
The case reached the Supreme Court alleging violations of personality development, discrimination based on nationality and lack of respect for the best interests of the child. However, the court rejected these allegations, arguing that the fundamental rights and dignity of the pregnant woman and the child, protected by the Constitution, prevail. In particular, the court held that such agreements imply exploitation of the woman and harm the child, as they commit the pregnant mother to hand over the child after birth without any possibility of refusal and deprive the child of his or her right to know his or her biological origins. Furthermore, it highlighted the mercantilist nature of these agreements, which involve payments to the pregnant mother, obtaining her consent in exchange for financial or other compensation. The Supreme Court also affirmed that refusing to recognise the foreign judgment does not violate the best interests of the child. This interest should not be defined according to the wishes of the intended parents or based on a surrogacy agreement or on filiation in favour of the intended parents under foreign law. The best interests of the child must consider the severance of all ties between the children and the woman who gestated and gave birth to them and the existence of a biological paternal filiation and a family unit in which the children are integrated. According to the court, to automatically recognise these filiations in Spain would harm the fundamental rights of pregnant women and children, who are treated as commodities, without guaranteeing the suitability of the intended parents.
CHIP welcomes this decision as it highlights the rights violations to which these arrangements give rise and the need to provide protection and recognition of the child’s right to identity. The specific rights of the child that are often at risk in surrogacy are the right not to be sold; the right to an identity, including birth registration, name, nationality, family relations and access to origins; and the right to the enjoyment of the highest attainable standard of health. States that have to respond to the problems of surrogacy due to the activities of their nationals and residents must pay attention to and take urgent action on these rights.
Source: STS 5879/2024 of the Supreme Court, Civil Division, of 4 December 2024, ECLI:ES:TS:2024:5879, https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunal-Supremo/Noticias-Judiciales/El-Tribunal-Supremo-rechaza-reconocer-una-sentencia-de-Estados-Unidos-que-valida-un-contrato-de-gestacion-subrogada-por-ser-contrario-al-orden-publico
