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Hiring a surrogate mother is not legal in Spain. This is what the Law has said for more than 12 years, and this has been said on several occasions, forcefully, by the Supreme Court. Whoever wants to obtain a baby through surrogacy has to go to a country where it is legal and then return to Spain. Civil judges have also made it clear that a contract that includes payment to a woman in exchange for gestating someone else’s child is doomed to nullity. But the courts have found a loophole in which a contract related to surrogacy can be considered valid: when, although the contract includes a commitment to obtain the baby, it is signed to provide only “legal advice” to the couples in the Foreign.
This is what the Provincial Court of Barcelona has sentenced a few weeks ago in the case of a couple, defended by the lawyer Joana Marín Fonseca, who sued the company Subrogalia. They claimed all the money they had contributed throughout a surrogacy process that was going to take place in the Mexican state of Tabasco. They paid more than 65,000 euros for a ‘premium pack’, says Justice, but the operation did not end as promised: the Mexican authorities prohibited surrogacy, the legal advisory agency recommended continuing in Russia and they, in the end, withdrew of the process and demanded the return of the money.
This is not the first case studied by the Justice on Surrogacy and these ‘legal advice’ contracts, but it is one of the ones that best reflects the legal debate about whether or not these contracts are legal. At first, a court in the Catalan capital rejected the couple’s claim on the understanding that the contract signed with Subrogalia was null and responded to a prohibited activity, in addition to an attempt to circumvent the prohibition that exists in Spain on rental wombs. . This company, according to its website, has not accepted new requests since January 2017.
The contract was clear about the purpose of the operation. “The company guarantees the good end of the contract, that is, the birth of at least one child,” said the clause entitled “guarantee of success.” And the court, in the first instance, understood that “it is evident that we have a contract with an illicit purpose” because “there is no doubt” that the couple knew that surrogacy “was and is prohibited in Spain.”
For the first judge who studied the case, the signing of the contract sought to “impose recognition on the State” of a prohibited activity by collaborating with a third state, in this case Mexico. “If when a baby is born abroad by the surrogacy technique, the State must give up, even partially and indirectly, to maintain the family integration of the minor, in cases like the present one it cannot do so,” reasoned the first sentence. Giving them reason and allowing them to recover the money invested in the ‘premium pack’ of Subrogalia, said the court, would imply “legally protecting the intended result by means contrary to law and fraud.”
The debate on whether or not the contract was valid reached the Court of Barcelona, which last September agreed with the couple and forced Subrogalia to return the more than 70,300 euros they invested in the rental belly. And the civil judges conclude that the contract they signed was for legal advice and did not include surrogacy itself. “What the defendants offered was legal advice in both countries to solve the difficulties of all kinds that this issue raised,” says the Barcelona Court, so “the breach is clear,” according to this resolution.
The judges explain that “one thing is that it cannot be carried out in Spain” but also that “another different thing is that carried out in another country in which it is not prohibited, the desire for paternity could not be consummated, in the manner proposed by the defendants, without contravening the Spanish legal system”. And they recall that, in what has to do with the registration of these children in the consulates, “we have seen the discrepancies between the General Directorate of Registries and Notaries” as well as “within the Supreme Court itself.”
The contract, the judges settle, had to do with legal advice and nullity can be applied for vice of consent “since the contracts have an illicit object.” Contrary to what the court had sentenced in the first instance: “I declare the contracts null and void for having an illicit object: to obtain a biological baby from one of the actors through surrogacy.”
The Supreme Court and its civil chamber have ruled on several occasions and clearly regarding surrogacy: it is not legal in Spain and any contract in this regard is null, although such a specific case has not yet been studied like that of these agencies that take refuge under the umbrella of “legal advice” for couples. On several occasions he has spoken, for example, about the filiation of babies born by this method and has been clear: “Mothers and children are treated as merchandise.”
He said it in a sentence issued in April of this year, although he had already ruled in that same sense on previous occasions. The judges studied the case of a woman who had obtained a baby in Mexico through surrogacy and was suing for her registration in the Civil Registry. In that sentence, the judges reiterated that the contracts on rental wombs “violate the fundamental rights of both the pregnant woman and the gestated child, and are therefore manifestly contrary to our public order.”
That resolution, as reported by elDiario.es, reflected the clauses of one of these contracts, which rarely transcend. One of the clauses, for example, reflected the procedure in the event that the “pregnant woman” suffered an illness or injury that put her life in danger, such as brain death. “The future mother has the right to keep her alive with medical life support, with the aim of saving the fetus until the treating doctor determines that it is ready for birth,” said the contract of this company based in Mexico.
This is not the first claim that Spanish courts, especially those in Barcelona, have studied about contracts signed by couples with Subrogalia. There were several people who sued the judges for the annulment of their contracts and several cases were resolved by the same Court throughout 2019 without any record that any of those cases have reached the Supreme Court.
That year the judges of the Barcelona territorial court agreed with six couples in five resolutions that, without taking into account interest, confirmed compensation ranging between 19,000 and 55,000 euros depending on each case. The databases of the Supreme Court and its civil chamber do not reflect any decision admitting or refusing to process these cases since then, although several of those resolutions were appealable.
In these cases, the judges understood that the contract they signed with Subrogalia was not for the leasing of services but for work, with the objective of “the birth of a boy or girl”. None of the couples got the baby they had paid for and the judges understood that there had been a breach of contract, ordering the return of the money. In some cases, part of the breach came from the intervention of a clinic that did not have the necessary authorizations.
Most of these cases reached the Provincial Court with the approval of the court to compensate the claimant couples and, therefore, the judges did not have the need to argue the validity of the contract that neither of the parties questioned. This case revealed today by elDiario.es is the first in which a court refused to recover the money because they had signed a contract regarding an activity prohibited in Spain, surrogacy, and not for simple legal advice.
