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Wednesday, March 3, 2010

A good analysis of last year's Spanish surrogacy ruling

I found this analysis of Spanish law on an international law webpage (http://conflictoflaws.net). Marta Requejo is a law professor at the University of Santiago de Compostela, so it looks as if that answers my question:  the Spanish government has conferred citizenship on surrogacy-born children.  Not sure we'll be testing the law ourselves, tho'.

Si algún lector español tiene más información, por favor dejame un comentario.

Spanish Homosexual Couple and Surrogate Pregnancy (II)

by Marta Requejo on March 14, 2009

In a previous post I related how a certificate issued in the U.S.A., establishing the parenthood of a baby born in this country to a surrogate mother, had been denied registration in Spain. The interested parties lodged an application for review before the Dirección General de los Registros y el Notariado (DGRN); on February 18, 2009, their appeal has been upheld. This post sums up the arguments on which the Spanish resolution is based.
The DGRN starts selecting the correct methodological approach: the request for registration in Spain of a birth certificate from a foreign authority arouses questions of recognition, and not of conflicts of law; hence art. 81 Reglamento del Registro Civil should apply. According with this article, facts can be registered by means of Spanish public documents; public foreign deeds are also accepted, provided they are given force in Spain under the laws or international treaties. A foreign act has to meet three conditions in order to be suitable for registration in Spain:
 .- The deed must be a public one: it has to stem from a public authority and meet the necessary requirements to be considered “full evidence” (i.e., to display privileged evidentiary strength) when used before the courts of the country of origin. Apostille or legalisation are usually called for; so does translation. In the instant case, the Californian certificate of birth and filiation satisfies those conditions.
.- The public authority granting the document has to be equivalent to the Spanish ones; that is, she mut provide with guarantees similar to those required by the Spanish law for entering into public registers. According to the DGRN, the authority responsible for civil registration in California satisfies this requirement.

.- The act contained in the foreign registration certificate must endorse a legality test involving three elements: international jurisdiction of the  foreign authority, due process, and compatibility with Spanish public order. In the case in point only the third requirement seems questionable. The DGRN devotes the rest of its reasoning to explain why incorporation of the foreign certificate to the Spanish Registro Civil  is not contrary to our public policy; why it “does not alter the smooth and peaceful running of the Spanish society”.

To this end the DGRN develops several points that may be summarized as follows:

1) Registering parenthood of two male subjects in the Spanish Registro Civil does not violate public order, since Spanish law admits paternity of two males in cases of adoption, and adopted children and biological children are equal in the eyes of law.

2) Spanish law allows registration of parenthood of female couples; to deny it in the case of a couple composed of two male individuals would be discriminatory.

3) To deny entry into a Spanish public register of facts concerning parenthood, already inscribed in a foreign register, would go against the best interests of the child as conceived in UN Convention on the Rights of the Child. The DGRN also recalls ECJ case law, such as Garcia Avello (C- 148/02) and Grunkin-Paul (C-353/06), where the ECJ argues in favour of a unique identity of the child. Later on the DGRN would reintroduce the argument of the child’s interest: allowing registration in Spain in the same terms as Californian registration is better than leaving the children without any registration in Spain, and also preferable to having two different entries, one in the U.S. and another one in Spain.

4) In Spanish law, parenthood is not necessarily determined from the genetic linkage of those involved.

5) The interested parties have not acted in fraud of law; they have not tried to change the nationality of children in order to prompt the application of Californian law. The babies, born to a Spanish person, are Spanish.

6) The interested parties have not engaged in forum shopping or any fraudulent attempt to circumvent the application of Spanish mandatory rules. The Californian certificate of registration is not a court decision with res judicata effect. Any party may challenge the content of the birth registration before the courts; if so, the Spanish Courts would establish the paternity of children once and for all.

5 comments:

  1. Hola chico
    Rotunda has several Spanish nationals with surro babies (mostly gay), some of whom are already back home with their babies and some in the pipeline. Don't believe anything you read on this issue. It's VERY DIFFICULT to get babies into Spain via surrogacy. HAVE NO ILLUSIONS ABOUT THAT. REPEAT. Make sure you do all your due diligence before proceeding so that you don't find yourself in an ugly situation with a stateless baby, which has happened before. And if you are not living in Espana then your attempt will be infinately more compicated. HOWEVER the good news is that it has been done. With that said though you must approach this with a bit of discretion. The Spanish govt is making exceptions but it also does not want everything broadcast so as not to inflame the usual looney tunes in the Church and elsewhere. Send me an email and I'll see what I can dig up for you in my spare time. There is one person who is back in Spain with his babies who has counseled Spanish nationals in the past so will ask him if he wants to share what he knows with you but in all honesty I'm not sure he's giving out info anymore. No promises but it's worth a shot. As you know the Euros tend to be very tight-lipped when it comes to all of this and value their privacy.
    "en boca cerrada no entran moscas" as my espanol teacher used to say... Verdad?
    Proceed cautiously and quietly.
    Cheers

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  2. Thanks, Jon, y claro que sí. Yep, as I said, in spite of this post I'm not sure we're willing to be legal guinea pigs ourselves at this point, especially since we live in the States anyway. Still, I'd appreciate hearing first hand from anyone who's been through the process.

    ReplyDelete
  3. I'm not sure which one of you is the Spanish national but are both of you US citizens? That is very important variable in this equation. If yes, then think about this scenario. If the genetic father is dual US and Spanish citizen then at time of birth, Papa should claim US citizenship for the baby in India. Forget about dealing with the Spanish Embassy. Repatriate the baby to US. Then apply for Spanish citizen AS A DUAL US CITIZEN whose baby was born outside Spain. Why should it matter where and how baby was born, trust me the laws are not that comprehensive YET. Do you get the subtlety here? The petition would be from a dual US/Spanish national petitioning on behalf of their US-domiciled baby who already has US citizenship. I believe under this scenario the de facto citizenship status of the baby (US and India but domiciled in US) SUPERSEDES the surrogacy status of the baby. Keep in mind when you petition you will be petitioning as a dual-citizen domiciled in the US and requesting Spanish citizenship under the reciprocal laws between the US and Spain (India is no longer part of the equation, in theory), NOT as a Spanish national whose baby is in India and whose Papa is scrambling to get the Spanish embassy to confer citizenship so you can exit. Got it? This is all theoretical but makes sense and I have heard of cases like this with other dual US/EU nationals where the EU nation had to defer to the inconsistency and lack of legislation and grant citizenship. Disclaimer: this is not a legal opinion, follow this advice only at your own risk.
    8-)
    Cheers

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  4. Hola! me llamo Enrique. Soy de Málaga. Estoy buscando información para tener un hijo y he leido vuestro blog!

    Leí en un artículo que en la embajada española en Bombai se necesita una prueba de ADN, para demostrar que el Bebé es vuestro. Con esto bastaría. Se trata de un Cordobés cuyo hijo nacerá en estos días en una clínica de esta cuidad ( Rotunda)

    No os puedo dar mas información porque no la tengo. Espero que podáis conseguir algo mas que os sirva de ayuda,

    Yo y mi pareja estamos buscando clínica en la India, pero no estamos seguros de ninguna porque no encuentro referencias alguna. Si no os importa, me podríais dar alguna información que ya tuvierais. Así podría avanzar algo!
    No se en que estado está vuestro proceso. A nosotros nos gustaría empezar para verano, pero para ello necesito saber un poco mas.

    Sabéis de alguna agencia que asesore en este país? Para EEUU hay muchas en España, pero para la India no.

    Si pudierais mandarme un mail, os lo agradecería. Cualquier tipo de información me sería muy útil.

    contrerasllorca@hotmail.com

    Muchas gracias por vuestro tiempo. Espero que podáis ayudarme un poco.

    Un saludo. Enrique

    ReplyDelete
  5. The DGRN starts selecting the correct methodological approach: the request for registration in Spain of a birth certificate from a foreign authority arouses questions of recognition, and not of conflicts of law; hence art. 81 Reglamento del Registro Civil should apply. According with this article, facts can be registered by means of Spanish public documents; public foreign deeds are also accepted, provided they are given force in Spain under the laws or international treaties.

    ReplyDelete