By: Marla Neufeld, Esq.
Spain has recently implemented a significant policy change, banning its embassies and consulates from registering children born through surrogacy in foreign countries. This decision follows a ruling by Spain’s Supreme Court, which condemned surrogacy as an exploitation of women and a violation of children’s rights. The new regulations, effective from May 1, 2025, cancel all pending registration processes and prohibit diplomats from accepting certificates issued by foreign countries that recognize Spanish citizens as the parents of a child born through surrogacy. Prior to this law change in Spain, intended parents from Spain pursuing surrogacy in the United States would obtain a parentage order in the United States and register their baby for Spanish law purposes either at a United States consulate or when returning to Spain.
Trend of European Countries Creating Challenges to Pursue Surrogacy
The Spanish government (along with other European and foreign countries) has long opposed surrogacy, describing it as a form of violence against women in the 2023 revision of the country’s abortion law. Despite the practice being illegal in Spain since 2006, Spanish couples have been able to register children born through surrogacy abroad by providing foreign court rulings. However, the Spanish Supreme Court’s recent decision has led to stricter enforcement of the ban, requiring biological proof of parentage or formal adoption for children born through surrogacy to be registered in Spain.
This policy change has ignited a wider debate on surrogacy across Europe, with politicians from various ideological backgrounds opposing the practice. Countries like Italy are also moving to restrict surrogacy, reflecting a growing consensus on its ethical and moral implications. While surrogacy was already illegal in Italy as of 2004, in October 2024, Italy criminalized Italians seeking surrogacy abroad, such as in the United States in an attempt to curb what Italy calls, “surrogacy tourism”. Spain’s new regulations are expected to be reinforced by upcoming legislation aimed at combating human trafficking, underscoring the government’s dedication to safeguarding women’s rights and children’s welfare.
Potential Challenges from Spain’s New Policy
One major issue regarding this law change in Spain is the legal and bureaucratic complications for Spanish citizens who have already engaged in surrogacy arrangements in other countries. These families may face difficulties in obtaining legal recognition for their children, leading to potential disputes and delays in securing citizenship and parental rights. Another challenge is the ethical and emotional impact on the children born through surrogacy. The policy requires biological proof of parentage or formal adoption, which can be a lengthy and complex process. It is unclear how this policy change will impact intended parents who do not have a biological connection to the child as in the surrogacy process, parents many times use donor egg, donor sperm, or even a fully donated embryo. This could result in uncertainty and instability for the children, affecting their sense of identity and belonging.
United States Birthright Citizenship Still in Effect
Currently, birthright citizenship in the United States ensures that children born via surrogacy in the U.S. are automatically granted U.S. citizenship and can obtain a U.S. passport to return to Spain. However, Spain’s new policy complicates the process for Spanish parents to legally register their child upon returning home in Spain.
For Spanish citizens considering surrogacy in the United States, it’s essential to consult with both a surrogacy attorney in the U.S. and one in Spain. The U.S. attorney can confirm the parental rights of the intended parents under U.S. law, while the Spanish attorney can advise on how to register the child according to Spanish law. Coordination between these legal professionals is crucial to ensure that the parents are recognized as the legal parents in both countries.
By working together, these attorneys can navigate the complexities of international surrogacy, streamline the process, and address any legal challenges that may arise. This collaborative approach provides peace of mind for the intended parents, ensuring the child’s legal status is secure in both the U.S. and Spain.
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