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 deed 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 ordre public. In the instant case 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 }

Toni Marzal March 15, 2009 at 11:55 am

A case similar to this one as well as to the French one reported by Gilles Cuniberti was handed down last December by the High Court of England and Wales.
Surrogacy there is legal, but no payment may be given in exchange. The Court nevertheless makes an exception here, concluding that “the welfare of these children require that they be regarded as lifelong members of the applicants’ family”
You can read the decision here:
http://www.bailii.org/ew/cases/EWHC/Fam/2008/3030.html

Kees Saarloos March 15, 2009 at 1:17 pm

Since 2003, the Dutch approach to legal parentage that has been established abroad is the same as described for Spain. The effect of a foreign birth record is not determined anymore on the basis of a choice of law reasoning.
Legal parentage that has been established abroad and which existence can be proven with foreign public documents is recognised unless it violates Dutch public policy.

The big question is whether this kind of surrogacy arrangements (meaning, arragement where the legal parentage of the commissioning parents has been established abroad) violate Dutch public policy.

In december 2007 the district court of the Hague dealt with surrogacy involving a Dutch couple and an English surrogate. There are two decisions in this case. Unfortunately only the final decision has been published.
In the first decision the court held that the paternity of the Dutch man on the English birth record violated Dutch public policy, because the court found that the mentioning of a man on an English birth record has another legal meaning than on a Dutch birth record (under English law, the man is presumed to be the biological father, while under Dutch law the man on the birth record is the legal father of the child).
In my view, this decision is not correct.
In the final decision, the court orders the adoption on the basis of Dutch law. The court allowed the adoption because it found that there was no indication of commercial surrogacy and that the couple fulfilled the (medical) requirements for surrogacy under Dutch law/legal practice. See:
LJN: BC5651, Rechtbank ‘s-Gravenhage , 269480 – FA RK 06-4380 (via http://www.rechtspraak.nl)

At this moment another case is still pending for the recognition of legal parentage that has been established in California pursuant to a surrogacy arrangement.

On this topic from a Dutch perspective see also Saarloos, K. & Berkel, J.H. van (2008) “From Russia with love: ouderschap na draagmoederschap en de Wet conflictenrecht afstamming”, Nederlands Internationaal Privaatrecht, 26(2), 117-124.

Esther May 13, 2009 at 3:09 pm

Dear Marta,

I’m very interested in the topic. Many thanks for your post, it’s very informative. Just a suggestion: maybe when you refer to “ordre public” or “public order” you could use the expression “public policy”, which is better known in the “Common Law” countries I guess.

Martin George May 15, 2009 at 8:43 am

Esther,

That is probably not advisable, as ‘ordre public’ and ‘public policy’ do not necessarily mean the same thing in all contexts.

See here for more: http://journals.cambridge.org/production/action/cjoGetFulltext?fulltextid=1503364

Esther May 15, 2009 at 11:20 am

Martin,

Many thanks for the explanation, I was completely misunderstood.

Regards,

Esther

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