Surrogacy alters and subordinates the child’s well-being and physical and mental health to the wishes of the intended parents/grandparents; it goes against the best interests of the child by breaking their maternal bond after childbirth, already agreed upon in the surrogacy contract ab initio.
The birth of new children is certainly wonderful; it is joyful news for the family and for an aging society like Spain, given the abysmal birth rates in the country. Accordingly, the desire to have a child/grandchild seems to all of us to be, in principle, something human and understandable. And indeed it is. What is not human and understandable but ethically and legally reprehensible is to put that desire for motherhood/fatherhood/grandparenthood before respect for the rights and dignity of those harmed in this enterprise: the surrogate mother and the child born through surrogacy.
While this is not a mainstream practice, neither is it an isolated one. The reality is that some Spaniards — famous and anonymous of yesterday and today — enter into surrogacy contracts that are null and void and prohibited in Spain, and knowingly travel to other countries for so-called “reproductive tourism” in order to satisfy a desire to be a parent with the same genetic makeup, forgetting (or ignoring) that being a father/mother/grandparent is not a right. According to the European Court of Human Rights, there is no right to motherhood/fatherhood based on mere will or on the projection of autonomy and personal development. In a ruling made on 24 January 2017 (Paradiso and Campanelli v. Italy), it stated that “there is no duty of the State to safeguard the mere ’desire’ to found a family, regardless of the way in which this purpose is carried out”.
Nor can we appeal to freedom. Freedom is exercised in relation to others; there is no such supposed unlimited freedom, which is neither ethical nor in conformity with the law and which causes irreparable damage to the rights of others who are weaker. Making the freedom (identified as “desire” and, therefore, futile) of some individuals (the strongest) prevail over others who are weaker is unjustifiable. It infringes Spanish law and the dignity and rights of the surrogate and of the most vulnerable human being — the child in an embryonic state — the child born of this practice.
Surrogacy, whether altruistic or commercial, violates numerous ethical and legal considerations. The child is not intended as an end in itself; the purpose of surrogacy is the “production” of a child to satisfy a desire for fatherhood/motherhood/grandparenthood. Accepting surrogacy would be tantamount to accepting that the dignity of the woman — and of the child born through these techniques — can be reduced to a mere object, to accepting that it is fair that we may at will objectify, instrumentalize, their human condition to satisfy desires (understandable but not omnipotent) not rights to parenthood. There are limits. Not everything that Science and Technology can achieve must be carried out. Otherwise, we agree to rent a woman’s womb and pay her for her services… and paying for women’s bodies isn’t anything new, is it?
These practices, which are very lucrative for intermediaries, exploit the state of necessity of the surrogate mothers, some of whom live in situations of poverty and social exclusion. The socio-economic profile of the women who undergo these practices is usually low, and the level of understanding and freedom with which they have participated in this trade is rather doubtful.
Spanish law stipulates that the mother is determined by childbirth, but with this practice, motherhood is commercialized; the woman’s body is instrumentalized and transformed into a production tool, which is incompatible with human dignity. This means, contrary to our legislation, the exploitation of the woman, turning her into a mere incubator, something very humiliating for her when she is treated as a receptacle, as a womb that can be rented ignoring her feelings, her personality, and her motherhood. She is enslaved.
Likewise, since the result of the use of assisted reproduction techniques has as its culmination or goal 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 considered the property of other people, so no one should be able to utilize them, either to acquire them or to eliminate them. The exercise of fatherhood/motherhood is a responsibility, not the materialization of a property. In this sense (and not in the sense used at the time to limit the freedom of education of parents), that famous phrase of the minister who stated that children “do not belong to the parents” becomes relevant. Indeed, children are not the property of the parents and, therefore, we cannot trade them, but fatherhood/motherhood is a responsibility and there is no right (as such) to produce children to satisfy personal desires. It violates Spanish public order to establish filial relationships through contracts between individuals or practices not legally recognized. This is not plausible, advisable, or legal. The personal and social needs of abandoned children — who no one cares or is concerned about — are better met if we turn to the very laudable and satisfying possibility of adoption.
However, instead of choosing adoption, more and more people are opting for surrogacy or the combination of surrogacy with another practice that allows children to be born following post-mortem artificial insemination of the eggs of the mother fertilized with the sperm of the father after his death, doctrinally referred to as “children of Thanatos”. These are children born to satisfy the desire for motherhood of the widow after the death of her husband — although de facto couples are also included in Spanish law — as well as the desire of the deceased to have offspring with their own genetic makeup even after their death, giving rise to an intentional “parental void” even before the conception of this child who is born fatherless. And it seems that the audacity of some will not cease to amaze us if we look at the growing number of grandparents who add to the fulfilment of their desires for grandparenthood, disregarding the serious consequences of the continuing sexual and reproductive exploitation of women, the reduction of the surrogate to the role of human incubator, the inferior status of the surrogate in the pregnancy contract agreed with the intermediary companies, and her alienation as a person, as a human being.
In relation to children born through surrogacy, 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 Convention on the Rights of the Child has warned some of the countries where these practices are carried out about the need to establish guarantees that prevent child trafficking, but how can the eradication of profit-making and the pursuit of personal desires be guaranteed if not by banning this reproductive technique?
The reality is that surrogacy alters and subordinates the child’s well-being and physical and mental health to the wishes of the intended parents/grandparents; it goes against the best interests of the child by breaking their maternal bond after childbirth, already agreed upon in the surrogacy contract ab initio. This is at odds with the child’s right to remain with their birth family. Consequently, the child’s right to be raised by their real parents (in any event by their mother), to prioritize their remaining in their birth family, and to maintaining their biological family relationships is compromised and, therefore, the future child is deprived of the right to know their origins. The best — and preferential interests — of the minor are always violated in all respects.
The surrogacy contract is not only legally null and void in Spain, but it contravenes Spanish public order in matters of filiation and it is a fraud of law to use this well-known “reproductive tourism” to other countries to obtain there what Spanish law prohibits here.
Pilar María Estellés Peralta
Chair of the Department of Private Law
Catholic University of Valencia