Ester Farnós

Should surrogacy be allowed in Spain? Current debates and some reflections

My participation will deal with the possibility of a legal reform, either internally or through international recognition, that would enable parentage to be established by the use of surrogacy. Firstly, I will focus on the current legal reality in Spain, which denies surrogacy arrangements any legal effects and, therefore, states that any child’s legal mother is the woman who gave birth to it. Secondly, I will analyse the effectiveness of these arrangements when they are performed by Spanish citizens in other legal systems, such as India, Ukraine, the American state of California, or the state of Tabasco in Mexico. The lack of any specific surrogacy prohibition, together with the absence of criminal and/or administrative sanctions has led to surrogacies undertaken abroad being recognised by Spanish judicial and administrative bodies, which, frequently invoking the principle of the child’s best interests, have established the parentage of children gestated by these means and have granted paternity or maternity leave. However, any well-grounded response requires not only approaching the topic from an ex post or pragmatic point of view, which only seeks a solution from an international private law approach when the child already exists. It also demands an ex ante approach which questions from a democratic point of view which takes into account the symbolic value of domestic laws whether surrogacy in Spain really requires a response at domestic level. Apart from raising discrimination issues among individuals who can afford to access surrogacy abroad and those who cannot, legislative silence, together with the quasi-tolerant approach endorsed by administrative and judicial bodies, will also promote legal uncertainty for Spanish citizens who wish to access surrogacy and for children gestated this way. From this point of view, my participation will point out the arguments for it to be possible to state that surrogacy is not contrary to Spanish ordre public any more.

Ester Farnós-Amorós is Lecturer in Civil Law at Pompeu Fabra University (Barcelona). She has been conducting research at the Oxford Centre for Family Law and Policy (Oxford University, 2005-2006), Cornell Law School (Cornell University, 2007-2008) and the Autonomous University of Madrid (2013-2014), among other institutions.

Her main research interests lie in the fields of family law and bioethics. She holds a Ph.D. in Law from Pompeu Fabra University by a thesis on disputes over frozen embryos after divorce (IV Extraordinary Ph.D. in Law Prize, 2011) and is the author of a book on consent to assisted reproductive technologies (Atelier, 2011), which was awarded the XIV Prize for Bioethical Research (Fundació Víctor Grífols i Lucas, 2012). She is the author of several book chapters and law review articles, mainly on topics such as family self-determination, legal remedies to torts among family members, parentage -especially, parentage resulting from access to assisted reproductive technologies- and the effectiveness of surrogacy agreements. She is a member of the Harmonization Section of the Codification Committee of Catalonia, which is part of the Justice Department of the Catalan Government, and has been a member of the Bioethics Committee of Catalonia working group on the right to know one’s biological and genetic origins. Currently she is part of two research projects being carried out at Pompeu Fabra University and Autonomous University of Madrid, respectively, on reproductive freedom and building family relationships and family self-determination in Spain and Latin America on the 21st century.