Spanish homosexual couple and surrogate pregnancy
While some countries, like the U.S.A., accept surrogate pregnancy among permitted techniques of assisted reproduction, Spanish law considers it illegal. That is why a certificate issued in the U.S.A. establishing the parenthood of a baby born in this country to a surrogate mother would not be registered in Spain; accordingly the baby would not have Spanish nationality; and consequently, he would need a visa to come to Spain.
This apparently neutral facts may not describe a theoretical situation but correspond whit a quite real one. A Spanish homosexual married couple from Valencia decided to try surrogate pregnancy after several failed attempts of international adoption; as for a national adoption, they feared they would not be awarded the “certificado de idoneidad” due to their homosexual condition. They therefore moved to the USA looking for better chances. Today, the intended parents and (their?) two twin babies born in the USA to a surrogate mother are the major figures of a complicated situation. The couple is in the U.S. since the Spanish embassy has denied the babies the visa to enter Spain. So far, the twins bear American nationality to prevent them from being stateless.
According to press reports, the couple has ruled out the option of returning to Spain by registering the babies as born to a Spanish female mother; they want them to be acknowledged as their children, and them to be granted the Spanish nationality. Faced with the Spanish refusal they might decide to remain (to exile?) in the U.S.A., where they have been offered a residence permit. They have warned the Spanish government that they will start a legal battle both in the U.S.A. and before the European Court of Human Rights, claiming violation of the Declaration of the Rights of the Child. Considering the importance of their aim, how much it is worth; but also knowing how exhausting such processes will be, we can only wish them courage and luck.
Is the mother shown on the birth certificate? Or more pertinently, would a heterosexual couple be able to put their names alone on the birth certificate? If so, this is a rule that in practice discriminates against homosexuals.
I am curious – What is the status or legal relationship between the homosexual couple and the children under US law? I presume that some form of legally binding document was signed by the parties in the US?
I reported earlier on a similar French case. The babies had come back to France on a U.S. passport.
The Paris Court of Appeal eventually recognised the birth certificates.
News are coming in a few days. I wish the Spanish Autorities might consider the possibility of recognizing the Californian birth certificate on the basis of “the interest of the child” as stated in article 3rd of the Convention on the Rights of the Child NY 20th november 1989. Let’s remember: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. This provision should be regarded as an important element of Spanish Public Policy which might operate to allow the legal effects of the California birth certificate in Spain. We shall see….
To Marta Requejo: How can I reach you, please? I am a writer at the New York Times.
Sending this msg. Wed. 10 Dec. 2008.
According to my Spanish friends, the Spanish Direccion General de Registros would have released its decision accepting the application. Hence the twin babies would be considered as legal sons of the same-sex spouses. To be confirmed, anyway…