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Spain seeks solution for surrogate babies stuck in legal limbo

European Court of Human Rights ruling could help dozens of couples get their children registered

Surrogacy is forbidden in Spain.
Surrogacy is forbidden in Spain.

For the last four months, dozens of newborns have been caught in a legal limbo in Spain, which has been refusing to recognize their parents or grant them any rights as Spanish citizens.

The babies were born to surrogate mothers, a practice that is banned in Spain. Dozens of heterosexual and same-sex couples who went abroad to hire surrogates have found they are unable to include their children on the Civil Registry, a necessary step toward attaining citizenship and the rights it brings.

According to an association representing the families, the problem stems from an adverse ruling handed down by the Supreme Court in February of this year that led Spanish consulates abroad to stop registering babies born to surrogates.

Now, affected couples are pinning their hopes on the European Court of Human Rights, which has condemned the French state for maintaining similar policies. The Spanish government admits that the European ruling is also binding for Spain, and that it is analyzing legal ways to implement it, according to Justice Ministry undersecretary Juan Bravo.

For years, embassies copied US birth certificates word for word, and nobody asked any questions

Even before the Strasbourg decision was made public, the Spanish Justice Ministry had expressed a desire to do something about the situation, at least in the case of babies born in the United States, where surrogacy is legal and is supervised by judicial authorities.

Two weeks ago, the Cabinet approved a bill that made some progress on the issue. But families say it is not enough.

In the meantime, these babies are living in Spain on their American passport, while stuck in an administrative no man’s land.

The 2006 Assisted Reproduction Law declared void any contract signed with a woman who agrees to see a pregnancy to term on behalf of another party, regardless of whether she is paid to do so or not. Even so, demand has grown in recent years as couples circumvent the law by traveling to countries where surrogacy is legal.

Around 800 Spanish couples resort to surrogate mothers in the US every year, according to advocacy group Son Nuestros Hijos (They are our kids).

The dilemma is, how to register those children back in Spain so they will have the same rights as other Spaniards. For years, registry workers did not make too much trouble, according to this association and to several lawyers and civil servants consulted by EL PAÍS. Embassies copied the US birth certificate word for word, where the couple’s name showed up as the child’s legal parents, and nobody asked any questions.

Couples are pinning their hopes on the European Court of Human Rights, which has condemned France for similar policies

But that was when the couples were heterosexual. Following the 2005 law that allowed same-sex marriage and adoption in Spain, male couples also began hiring surrogate mothers. This made it more obvious to consulate workers that the babies had been born through surrogacy, and they began to hesitate. In October 2010, the Justice Ministry ordered registrars to act cautiously, given the increased demand for surrogate mothers in countries such as India and Ukraine, where no legal oversight is provided and it is harder to know whether the surrogate mother acted freely or out of duress.

It was decided to demand a court ruling from the country of origin confirming the validity of the surrogacy. This was not a problem for couples in the US.

But in February of this year, the Supreme Court ruled that this practice violated the 2006 ban on surrogacy, and that the baby can only be registered if one of the parents can prove his paternity and the other formally adopts the child.

The Strasbourg court uses opposing arguments to condemn France, holding that the rights of the child are above the need to respect existing laws.

“We are now forced to introduce legal modifications to adjust our laws to the Strasbourg interpretation, and we will,” promises Bravo.