Gestational surrogacy, surrogate motherhood, “rent-a-womb”, or whatever we want to call it, is an assisted reproduction technique whereby a woman agrees to carry a child under a contract that requires her to transfer all rights over the newborn to another person or persons (the intended parents or grandparents), who will assume parenthood of the child. With surrogacy, human beings are not procreated but produced; children are “commissioned” for different reasons, some related to health problems or sterility, but others not. Thus, children born as a result of such techniques are callously commodified, and their dignity and rights are seriously harmed. Furthermore, the use of surrogate mothers undermines the dignity and rights of these women as human beings and as mothers.
1.- Violation of the dignity and rights of women in gestational surrogacy
The collision of rights sparked by the advancement of science and technology has ended up undermining not only the dignity of the child and violating their rights, but also violates the rights of the woman and surrogate mother. The lack of support for the surrogate and the facility to terminate her pregnancy are shocking. The birth of new children is of no interest except in certain circumstances. Surrogacy is a further case of paradoxes and fallacies that are offered to women as practices that liberate their status of woman, yet its practice has brought about a new system of slavery for some women from the beginning of this century.
Gestational surrogacy, which is banned in some countries such as Spain and permitted in many others, is a source of numerous risks that undermine the dignity and rights of women and places surrogates in a vulnerable position when they are forced to resort to this practice to deal with poverty or social marginalization. It also gives rise to so-called “reproductive tourism”, which violates the common principle in continental Europe that women’s reproductive and pregnancy capabilities cannot be the object of legal transactions. The commercialization of motherhood is the main cause of harm to the human dignity of the surrogate, given the unavailability of her own body, although not the only one. A number of injuries to their rights and dignity may be noted in this practice.
- A) Sexual and reproductive exploitation of women
Surrogacy practices are very lucrative for intermediaries, so in many cases there is exploitation of the state of need of the surrogates, some of whom live in impoverished conditions. The socio-economic profile of women who submit to these practices is often low, and the level of knowledge and freedom with which they have participated is rather dubious; there are more than well-founded elements to suspect that these are women who are poor and socially marginalized, or who need a certain income for them and their families to survive. Consequently, they have no problem in relativizing the surrogacy process and surrendering the child in order to do so. In such circumstances, does this woman “rent” her womb by choice or by coercion?
The recent Supreme Court Ruling (SCR) of 31 March 2022, in Court Opinion (CO) 3-8, says that “it does not require a great deal of imagination to get a full picture of the economic and social situation of vulnerability in which a woman agrees to submit to this inhuman and degrading treatment that violates her most basic rights to privacy and physical and moral integrity, who renounces being treated as a free and autonomous person endowed with the dignity inherent to every human being”, and that she accepts limitations on her personal autonomy and physical and moral integrity during the pregnancy, which is incompatible with the dignity of every human being.
Secondly, but no less importantly, this practice is a very profitable business for intermediaries. Therefore, it would not be surprising if some women (or girls) are forced into surrogacy just as others are forced into prostitution – even by their own families in serious need and extreme poverty – which means the commission of crimes against human rights and the linking of surrogacy with human trafficking. If this continues, perhaps in the future women could be forced to bear children on behalf of others as a social duty, as Margaret Atwood relates in her novel The Handmaid’s Tale. For now, we can say that this practice entails, in many cases, a “pimping” of pregnancy.
- B) The reduction of women as goods for sale
The denigrating advertising experienced by women subjected to these practices is another point to consider in the seriousness of the issue. Some agencies offer gestational surrogates and include their phenotypic characteristics, pregnancy success rate, etc., discriminating against the less “productive”. The surrogate is offered as a commercial product for reproduction, closely resembling the advertising of animal breeders and seriously infringing her dignity as a person.
- C) Reduction of women to a mere instrument at the service of a third party’s desire for parenthood
Gestational surrogacy, regardless of whether it is altruistic or remunerated, violates the dignity of the surrogate, who practically disappears as a subject of rights, inasmuch as she is instrumentalized and placed at the service of the intended parents’ desire to have children, with the contractual relationship (the surrogacy contract) constituting a process of commodification of the surrogate (and the child born of these practices) incompatible with her dignity.
At the legal level, the Spanish Supreme Court Order of 2 February 2015 is interesting and clarifying; it states that the right to create a family is not unlimited and does not include the power to establish filiation ties by means not recognized as such by the legal system (referring to surrogacy). Likewise, the Spanish Bioethics Committee, a collegiate body that enjoys functional independence and has an eminently consultative status on matters related to the ethical and social implications of biomedicine and the health sciences, issued a report in 2017 on the ethical and legal aspects of gestational surrogacy, in which it said that a person’s desire to have a child, however noble, cannot be realized at the expense of the rights of other people. The majority of the Committee understands that any surrogacy contract entails the exploitation of women and harms the child’s best interests and, therefore, cannot be accepted as a matter of principle.
Moreover, the surrogate is clearly reduced to the role of a human incubator devoid of the characteristics of motherhood, which undermines her dignity and objectifies her by reducing her to a maternity service provider. Forcing a woman to lend her body in order to bear the child of another reduces her to the status of a mere instrument at the service of a third party’s desire for parenthood, violating her dignity as a woman and as a mother.
- D) The status of inferiority of women in the surrogacy contract
The surrogacy contract requires the surrogate to relinquish the child she carries in advance, without taking into account her right to change her mind. The surrogate may even have contributed her own egg; thus she is negotiating with her own child and harming the child’s best interests. All this contrasts with the right of the mother in cases of adoption to decide whether to keep the child or not, for which she has a period of reflection of six weeks from the birth (Art. 177.4º.2 Civil Code).
The consent given so prematurely by the future surrogate for registration of the birth of the child can only be considered to be devoid of all the guarantees sought by the requirement for a judicial decision by the Directorate-General for Registries and Notaries, i.e., the absence of error regarding the consequences and scope of the provision of consent. Above all, there is no guarantee that the surrogate mother will not suffer the consequences of the error and scope of the provision of this consent, or that she will not be subjected to deception, violence or coercion.
- E) Deprivation of maternity rights
Because they pay many thousands of Euros, clients believe that they have the right to decide on the surrogate’s eating habits, exercise, preparation for childbirth, type of birth, etc. Likewise, they believe they have the right to decide such important aspects as the number of embryos that are transferred to the surrogate, whether or not an “embryo reduction” or abortion is performed, or the type of delivery (natural delivery, caesarean section) the surrogate must undergo in any of the following cases, although this is not an exhaustive list: in the event that the nasciturus suffers from serious or non-serious health problems and the continuation of this pregnancy is no longer of interest; or if instead of one child, the implantation has resulted in two embryos and they seek to discard one of them; or in the case that the pregnancy is carried out for the procreation of a ‘savior sibling‘ and in the meantime a cure is found or the sick sibling has died and this is no longer desired (I emphasize the word “desired”) because it no longer serves any purpose; or as a consequence of the breakdown of the couple, the death of one of them, or they simply decide to withdraw (work problems, or mood problems, or they no longer ‘desire’ to be parents). Unfortunately, in these cases, the prevailing utilitarianism and hedonism often triumph, causing serious harm to the dignity and rights of the child and the surrogate.
2.- Violation of the dignity and rights of the child
Surrogacy is also the cause of numerous threats that undermine the best interests of the child. In relation to the nasciturus, these practices endanger not only its life and dignity, but also fail to consider that its best interests as a child should prevail.
- A) The harmful commercial exchange of the child
The gestational surrogacy process culminates in nothing less than the generation of a human being. We cannot ignore the fact that human beings in our legal system and in the 21st century cannot be regarded as the property of another, so no one should be able to dispose of them; the exercise of parenthood is a responsibility, not the materialization of a property. The phrase “children do not belong to their parents” was uttered in an infamous statement not long ago. It is relevant to bring up the intention of this statement — which had more to do with the exercise of parental authority than with this issue — to demonstrate that, effectively, children are not the property of their parents and that, consequently, we cannot trade in them; rather, parental responsibilities require care, education, food and respect for the children.
The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography defines the sale of children as “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”. The United Nations (UN) Committee on the Rights of the Child has warned some of the countries where such practices are carried out about the need to establish guarantees to prevent child trafficking. International surrogacy, insofar as it is commercial in nature and uses economically and socially vulnerable women as surrogates, can be described in most cases as trafficking in children and exploitation of women, beyond the fact that, in some cases, there is a legal framework that protects it in the surrogate’s country. Intergovernmental bodies, such as the Committee on the Elimination of Discrimination against Women (CEDAW), that have spoken out about gestational surrogacy have adopted positions of rejection or caution. The UN, through the Committee on the Rights of the Child, has warned some countries, such as the United States, of the risks of child trafficking in relation to these practices. Despite this, the child born in these conditions is used as an object of commercial exchange. Through surrogacy, a transaction is carried out, in most cases coerced and lucrative, to which poor, vulnerable women and even girls are subjected in order to bear a child on behalf of the intended parents/grandparents. They forget that the child is not part of the surrogate’s assets (nor of her body) because the object of this transaction is another human being that cannot be disposed of and not another part of her assets. Consequently, such practices lead to child trafficking.
- B) Injury to the best interests of the surrogate-born child
In surrogacy, the child’s well-being and physical and mental health are particularly affected by this practice, which is against the best interests of the child by breaking his or her maternal bond after childbirth, already agreed ab initio. This is at odds with the child’s right to remain with their family of origin. Accordingly, the child’s right to be raised by their real parents and to give priority to remaining in their family of origin and maintaining their biological family relationships is put at risk, and often intentionally violated. The result is precisely the opposite.
Similarly, as stated in CO 3-9 of the SCR of 31 March 2022, with surrogacy, the future child is deprived of the right to know their origins, it is “commodified” because it is conceived as the object of a contract, which the surrogate is obliged to deliver to the client.
- C) Filiation of the surrogate-born child
Surrogacy is also a matter of public policy and of great gravity and scope, such as determining maternal filiation with respect to a person who is not the biological mother and who entered into a surrogacy contract without providing their own genetic material. This is contrary to Article 10 of the Spanish Law on Assisted Human Reproduction Techniques (LTRHA) and Article 131 of the Civil Code, since the second paragraph of the latter legal provision excludes from the declaration of filiation manifested by the continuous possession of status, the assumption in which the claimed filiation contradicts another legally determined one. In this case, it contradicts the second paragraph of Article 10 of the LTRHA, in accordance with the jurisprudence of the Supreme Court in relation to determination of the filiation of children born after the conclusion of a surrogacy contract on behalf of the intended parents, established in SCR 835/2013, of 6 February 2014. In that judgment and in the subsequent order of 2 February 2015, which overruled the latter’s application for nullity, the Supreme Court held that the claim to recognize filiation determined by a foreign authority as a result of a surrogacy contract was manifestly contrary to Spanish public policy.
This manifest contradiction arises both from the fact that Article 10 of the LTRHA establishes the full nullity of these contracts and that the maternal filiation of the surrogate-born child will be determined by the birth and not by the desire of the intended mother, as well as the fact that the surrogacy contract seriously violates the fundamental rights recognized in our Constitution and in the international conventions on human rights to which Spain is party.
The Supreme Court recently ruled on this issue in the SCR of 31 March 2022, but in this case, the dispute that led to this pronouncement raises the issue from another point of view. What was sought in this case was not the recognition of an act of foreign authority, but the determination of the filiation of a child in accordance with Spanish law, specifically pursuant to Article 131 of the Civil Code, considering that the applicable law to resolve the claim raised is that of the State where the child has their habitual residence (therefore Spain), and not that of the State where the child was born. Consequently, and in accordance with Spanish law, Article 10 of the LTRHA declares the surrogacy contract null and void and accords ownership of the maternal filiation relationship to the surrogate mother. Therefore, it is neither legally nor morally feasible to accord the filiation of the surrogate-born child by appealing to one’s own convenience or desires. The reason is simple, as the 2017 Report of the Spanish Bioethics Committee concluded: a person’s desire to have a child, however noble, cannot be realized at the expense of the rights of other people. A surrogacy contract involves, in any event, exploitation of the woman and harm to the child’s best interests and, therefore, cannot be accepted on principle. This was stated by the Supreme Court in the SCR of March 2022, CO 3-12, based on the fact that Article 8 of the European Court of Human Rights (ECHR) does not guarantee the right to start a family or the right to adopt, since the right to respect for family life does not protect the simple desire to start a family (judgment of 24 January 2017, Paradiso and Campanelli case, paragraph 141); this is in addition to those conducts related to this type of contract being criminally sanctioned, in which, through monetary compensation, a child or any minor is surrendered to another person and which is contemplated in Article 221.1 of the Spanish Criminal Code when the applicable legal procedures of custody, fostering or adoption have been circumvented.
The solution to the problems generated by these intended parents who seek to circumvent Spanish legislation is, in accordance with our legal system, the recognition of this relationship with respect to the biological father, through the exercise of the act of paternity claim, as provided for in Article 10.3 of the LTRHA, but not when the person seeking recognition of the filiation relationship is the commissioning mother. In that case, the route by which the determination of filiation must be obtained cannot be other than that of adoption, according to the solution proposed by the Supreme Court for the case tried in the aforementioned SCR of 31 March 2022, in accordance with the opinion of the ECHR of 10 April 2019, which accepts as one of the mechanisms to satisfy the child’s best interests in these cases “adoption by the intended mother […] insofar as the procedure laid down by domestic law to ensure that those means could be implemented promptly and effectively, in accordance with the child’s best interests”. Adoption in accordance with Article 26.2 of Law 54/2007, of 28 December, on International Adoption, for its validity in Spain must not infringe Spanish public policy; those adoptions whose constitution has not respected the child’s best interests violate Spanish public policy, particularly when the necessary consents and hearings have been waived, or when it is established that the consents were not informed and free, or were obtained by payment or compensation.
- D) The best interests of a particular child versus the general interests harmed by this practice
Ultimately, and as indicated in CO-14 of the SCR of 31 March 2022, it is not so much a question of deciding whether a particular solution satisfies the best interests of a child, assessed in particular, as required by the aforementioned Opinion of the ECHR, as of safeguarding the fundamental rights that the aforementioned court has also considered worthy of protection, such as the rights of surrogate mothers and children in general (judgments of 24 January 2017, Gran Sala, Paradiso and Campanelli case, paragraphs 197, 202 and 203: and of 18 May 2017, 2021, Valdís Fjölnisdóttir and others v Iceland, paragraph 65). These rights would be seriously harmed if the practice of gestational surrogacy was encouraged, and to a greater extent, commercial surrogacy. This would facilitate the action of intermediary agencies in the gestational surrogacy, if they were able to ensure their potential clients of the almost automatic recognition in Spain of the filiation resulting from the surrogacy contract, despite the violation of the rights of the surrogate mothers and of the children themselves, who are treated as simple goods. Moreover, the procedure would be carried out without even checking the suitability of the commissioning parents to be recognized as the holders of parental rights of the child born through this type of pregnancy, which is required of adoptive parents. Thus, our High Court once again censures this practice, which entails modern twenty-first century slavery and provides a solution — namely the adoption of the child by the commissioning parents if they already form a de facto family — which will not mean that these practices will be curbed either.
3.- Adoption is not the solution
The adoption of these children, however, proposed as a solution to this problem, far from deterring this harmful technique, will generate new problems and discriminatory treatment that should be considered. I am referring essentially to the question of the suitability of the intended parents (the mother in most cases) to be adoptive parents and the application of the same criteria and conditions of equality as are required of adoptive parents in domestic and international adoption processes. This is in order to prevent fraud and to protect children — not only the specific child concerned but also children in general — from all illegal trade in and trafficking of children.
The problems caused by these intended parents who intentionally violate their laws on surrogate pregnancy generate legal and ethical questions that are difficult to resolve for the interests of the children involved. However, the solution of adoption as the only viable one contrasts with the basic lines of the Spanish system of adoption, imbued with a strong administrative intervention by the requirement of obtaining a certificate of suitability of the adoptive parents as a requisite of the administrative procedure that ends with the granting or refusal of adoption; this is followed by a judicial process (in domestic adoptions) culminating in the requisite judicial decision that must take into account the best interests of the adopted child (art. 176 CC). In this process, neither the competent authority nor the judicial authority confines itself to approving the statements of intent of the prospective adoptive parents, but assumes oversight functions that allow them to decide whether to grant or refuse the requested adoption in order to preserve the principle of the child’s best interests. This, of course, is understandable. The adoptive parents are going to parent the child, they are going to educate, care for and guide them throughout their life and, to do so, they must be suitable. Thus, in order to declare the suitability of the applicants and to determine that the adoptive parents are fit to take care of the child, a series of reports are needed, produced by specialized technical teams composed of psychologists and other professionals who evaluate their personal, couple, family, social, socio-economic circumstances, etc., through interviews, questionnaires, chats, etc., to ensure that the applicants will fully cover the needs of the child. This process takes a few weeks or even months.
It will therefore be difficult to positively assess the suitability of these intended parents if one takes into account that the applicant(s) have violated the prohibitive laws on the matter, that they have subverted public policy and have attempted to commit legal fraud, have traded with a woman’s womb, in violation of her dignity and rights, have trafficked with the child born of these practices, etc. solely to satisfy their wishes and carry out their plan to become parents above all other interests at stake. It does not seem the best thing to grant adoption to such individuals, nor that the intended parents now seeking adoption are the right people to raise and educate any child, whether or not they carry their genetic makeup.
Allowing the surrogate-born child to remain with the intended parents, probably with a view to becoming their adoptive parents, would be just like legalizing the situation created by them in violation of important rules of State law. It would be more in keeping with public policy, law and the child’s best interests if the child were adopted by the right people, by a more suitable family in which to grow up and develop. Obviously, due consideration will have to be given to the fact that the child does not suffer serious or irreparable harm due to the separation. Each specific case should be analyzed and a fair balance between the different interests in question must be struck, but to admit the effects of the filiation derived from this technique or to accelerate the adoption processes of these minors does not seem the best option to put an end to this trafficking of children.
Pilar María Estellés
Bioethics Observatory – Institute of Life Sciences
Catholic University of Valencia
Estellés Peralta, P. Mª: “Gestación por sustitución: Desafíos jurídicos y éticos”. Revista de Actualidad Jurídica Iberoamericana, Nº 9, agosto 2018, ISSN 2386-4567, pp. 330-357.
Estellés Peralta, P. Mª: “Paradojas en el avance hacia la igualdad jurídica de la mujer”, en Mujer y mujeres. Su esencia y su existencia en la historia. Vol. II. Huellas de la mujer ayer y hoy. Su lugar, su influjo, su imagen, Publicaciones de la Cátedra “Santa Teresa de Jesús” de Estudios sobre La Mujer, Capítulo, 2, diciembre 2021, pp. 45 – 82, ISBN 978-84-9040-677-9.
Estellés Peralta, P. Mª: “History of Spanish law in the regulation of assisted reproduction techniques: the legal and family neglect of human life in vitro”, en Medicina e Morale. Rivista internacionale di Bioetica, 2013-5, pp. 965-979.
Estellés Peralta, P. Mª: “La desprotección del ser humano embrionario y los nuevos retos en materia de filiación derivados de las TRA”, en Estudios de Derecho Privado en Homenaje al Profesor Salvador Carrión Olmos (J. R. De Verda dir.), Tirant lo Blanch, December 2022, pp. 577-596, ISBN 978-84-1113-275-6 (in publication).