The Government falls short in its battle against surrogacy

Guarantee of “reset” if the baby dies. Choose the sex. Compensation in case of loss of the uterus. Individual apartments during the stay in the country. Discounts to join the days when the trade is on sale. These are some of the advertising strategies used by intermediary agencies that offer surrogacy services. The practice is prohibited in Spain but the agencies based in our country do business with national clients whom they take to third countries where the practice is allowed. Despite the fact that the coalition government agreement contemplated acting against these companies and vetoing surrogacy, the measures taken so far barely address the tip of the iceberg. For now, the agencies continue to function and the order approved by the Ministry of Justice in 2010 that allows these children to be registered in the Civil Registry has not changed.

The Government decided to address surrogacy within the abortion law that came out of the Council of Ministers a few weeks ago. However, the text falls short of the commitments reached by the coalition, but also by PSOE and United We Can separately. The project, which will now have to undergo parliamentary processing, only pursues the publicity of the agencies that act as intermediaries so that surrogacy occurs through contracts that are signed and carried out abroad, but that allow babies end up in the hands of Spanish people.

However, the agreement signed by Pedro Sánchez and Pablo Iglesias in December 2019 was more ambitious. “We say NO to wombs for rent”, collects that document on page 37: “They undermine the rights of women, especially the most vulnerable, commodifying their bodies and their reproductive functions. And for this reason, we will act against the agencies that offer this practice knowing that it is prohibited in our country.” Although generic, the commitment was to go against those companies that camouflage the business of wombs for rent in the most varied activities, from "legal activities" to "advertising agencies" and even "computer programs and web programming''. And it is precisely that there is no specific epigraph that includes this specific activity.

The Minister of Equality, Irene Montero, acknowledged when presenting the rule that other measures had been included in previous drafts to combat surrogacy. One of the proposals of her department was to criminally prosecute people who obtain a baby by renting a surrogate mother outside the borders of Spain. But Montero left the ball on the Socialists' court. "A law is always negotiated within the scope of the different competent ministers and the Government, and although in the initial drafts there were more measures, finally, what I have explained to you are the measures that this Law takes with respect to reproductive exploitation," he replied. in the press conference after the Council of Ministers to the question of why the persecution of intermediary agencies had remained outside the norm.

Sources from the Ministry of Equality point out that the Ministry of Justice refused to include this criminal prosecution in this rule, considering it a matter within its competence and that, in any case, it should go in another law.

In Justice, on the other hand, they assure that surrogacy is the responsibility of Equality and they limit themselves to mentioning the parliamentary processing of the abortion reform as the space in which to propose amendments that introduce changes. Socialist sources acknowledge that the text does not meet expectations and also leave the extension of the fight against the agencies for parliamentary processing. “We will have to assess the entire law well when it reaches Congress. We will meet with the feminist organizations and we will see what proposals they make us, as with the only 'yes is yes'”, point out these sources, who recall that this was how they presented amendments to the sexual freedom law.

The 40th Congress in which the Socialists supported Sánchez last October concluded that "it is necessary to work on a legislative framework that prevents the use of Spanish nationality to whitewash said violation of women's rights": "We must put the emphasis on companies and agencies that commodify women's bodies, and those that act as intermediaries, prohibiting and penalizing this activity”. The electoral program of the PSOE also collected the performance "against the agencies that offer this practice".

The intention of the PSOE was, in addition, to promote in the European Parliament that surrogacy and prostitution be considered a crime at the community level, as approved by the European Parliament regarding sexist violence. However, the Spanish socialist delegation has not yet taken any step in that direction given that there is no granite position in its group in Europe on wombs for hire and prostitution.

Meanwhile, last April, the Supreme Court ruled a strong sentence in which he stressed that surrogacy is prohibited in Spain and in which he charged harshly against this practice and against the companies that make it possible. It was not the first time that the Supreme ruled in this way. "Gestational surrogacy contracts violate the fundamental rights of both the pregnant woman and the gestated child, and are therefore manifestly contrary to our public order," said the Supreme Court in this ruling. The agencies that profit from this business, said the Supreme Court, "act without any hindrance in our country, they advertise their activity." That publicity is precisely what will prevent and sanction the reform of the abortion law, but it will not make the companies stop working.

Octavio Salazar, professor of Constitutional Law at the University of Córdoba, explains that the underlying legal problem is that, despite the fact that surrogacy contracts they are null and void, as established by the Law on Assisted Human Reproduction Techniques, the practice is not prohibited in itself in our country, "just as the sale of organs or the exploitation of minors is prohibited," he gives as an example. For Salazar, the strongest way to attack this practice would be to include it in the Penal Code. "From there, any entity, law firm, or group that engaged in some type of activity aimed at entering into a surrogacy contract would be prosecuted because it would be illegal," he points out. Lawyer Irati Alkezar, a specialist in this field, also considers that if surrogacy contracts are null by law, that nullity should have some effects: "Nullity means that we have to act towards a situation in which we make that contract never would have existed." From her point of view, the persecution of advertising is not enough, "because the fact that there is no express advertising does not mean that people do not know which intermediaries and agencies they have to go to to start a process of these characteristics" .

But, in this case, the problem is found in practice: what happens when surrogacy has started and the boy or girl already exists. "The child born abroad as a result of gestation by substitution, despite the legal and conventional regulations referred to, enters Spain without problems and ends up integrated into a certain family nucleus for a long time," said the Supreme in his sentence, which, compared to the filiation in the records, opened the door to the adoption of these children by those who have paid. This affiliation is possible thanks to an order that the General Directorate of Registries and Notaries, which depends on the Ministry of Justice, issued in 2010.

This instruction is essential so that children born through the practice of surrogacy end up in Spain. Within the PSOE itself there was pressure to remove itas a formula to de facto put an end to the situation, but was discarded and the Government does not plan to annul it. In an interview in, former president José Luis Rodríguez Zapatero, under whose mandate this order was approved, acknowledges the debate, but considers that the interest of the minor should prevail. "We do not want to admit surrogacy, but when it occurs there is a minor and there is a conflict of interests that must be harmonized, as in so many other issues that affect rights that are so sensitive, so intimate and so important," he explained.

Octavio Salazar believes that the alternative is to follow the doctrine that the Supreme Court has been establishing in this regard: that these children do not have parentage except through adoption. "As long as the practice exists in other countries, we have to see how to avoid leaving minors in limbo," says the professor, who insists that the decision to repeal that order is "purely governmental" because "it is a decision of a management". The order would cease to be in effect as of a later date: "That the ministry give the order that as of a certain date minors gestated from that practice are not recognized in the records and articulate, for example, the adoption solution, which would introduce more level of difficulty". Alkezar underlines the practical difficulty of acting once the minors exist and enter the country, but stresses that the first step would be to put a stop to registrations. "What is not consistent is that there is an order from an administrative department that is not consistent with the Supreme Court rulings and with the law that declares these contracts null and void."

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