13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother NA
b. oocyte donor NA
c. sperm donor NA
d. intended mother NA
e. intended father Yes
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes, See point number 17.
15. Is the existence of a genetic link required for establishing paternity/maternity? Yes, According to Spanish Civil Code, birth is the essential issue to determine motherhood. Mother is the woman who gives birth, not the one who provides the genetic material. In the current filiation system, natural fatherhood is based in the genetic truth, while motherhood is based on biological motherhood.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? NA
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
17. Are foreign birth certificates in surrogacy cases registered in your country
Yes, In September 2010 a direction of the General Directorate of Registries and Notaries established that those children born by means of surrogate motherhood could be registered with Spanish citizenship in the Civil Registry, provided they were born in a country where this technique is regulated, one of the parents had Spanish citizenship and there were a judicial sentence warranting the legality of the process and established the filiation of the child.
A sentence of the Supreme Court in February 2014 laid down that registering children born by means of surrogate motherhood in the name of both parents results in evading the 2006 Law that doesn’t allow this technique in Spain, so that all registrations in consulates came to a halt or were even refused since then. This sentence affected the families who had carried out the process in the USA. The only solution since that moment was to register the child by the parent who could certified his /her genetical parenthood and the adoption of the child by the other, as it happens in other countries.
End of June the European Court for Human Rights in Strasbourg condemned France (65192/11 (Mennesson c/ France) y 65941/11 (Labassee c/ France) for not having recognised parenthood of couples, who have had their children by means of this method in USA. The reason given by this Court was that rights of the child are above legal public order.
Due to this sentence Spanish Ministry of Justice has ordered the consulates to allow again the registration of these children in the General Register Office, as it had been done until 2010.