The subrogate motherhood and the discrimination problems in Spain

The subrogate motherhood contracts are declared void and null by the Spanish Law (art. 10 of the Assisted Human Reproduction Techniques Act 2006) and they are considered as contrary to the Public Order of Spain. In this line of thinking, on September 2010, the Court of First Instance of Valencia stated that if the new affiliation has been settled by law and the parents apply for its registration by a foreign register certification, then the birth thought surrogacy can not enter in the Spanish civil status register.

Nevertheless, on October 2010, the Dirección General de los Registros del Notariado dictated some instructions, according to which the authorities in charge of the civil status registers might grant the entry of the births, upon recognition of a compulsory foreign judgment, which created the parent-child relationship and whose national laws allow the use of subrogate motherhood and recognises the legal effects of the waiver of affiliation of the biological mother. If the judgement exists and if several guarantees are met, the birth through surrogacy can enter in the Spanish civil status registers by an automatic recognition.

Nowadays and in these situations, when subrogate affiliation is recognised, several problems arise in relation with motherhood compensations. Only couples of two women have seen how Spanish Authorities have recognised the right of the woman, who is not the biological mother, to receive motherhood compensations because of the interest of the child. However, on October 2012, a recent resolution of the Superior Court of Madrid has finally recognised a compensation of this kind to a man of a gay couple on the basis that despite the fact that homosexual’s unions allow to keep without difference the condition of the natural parent of each member of the couple in relation with the child; this does not have to mean a worsening of the rights of gay couples in comparison with heterosexual couples ones. This is only an example of the difference of treatment between Spanish homosexual men and women couples, who have used the figure figure of the subrogate motherhood.