BY ANA FERNÁNDEZ - TRESGUERRES

The Supreme Court ruling of 6 February 2014 decided, not without some controversy, that it is not possible to recognise the incidental recognition of a decision that recognised the filiation by substitution, or by intention, of a homosexual couple who contracted a maternity outside Spain on the grounds that such a transaction in Spain is contrary to public order, as it violates an imperative rule (article 10.1 of Law 14/2006, on Assisted Human Reproduction Techniques). The judgement was supported by dissenting opinions that emphasised the principle of non-discrimination, respect for the practice adopted in a country like the United States, and the best interests of the child already born.

As is well known, the Supreme Court ruling of 6 February 2014 decided, not without some controversy, that a decision recognising the surrogate or intended parentage of a homosexual couple who contracted a maternity outside Spain cannot be recognised as incidental on the grounds that it is contrary to public policy to do so in Spain, as it violates an imperative rule (article 10.1 of Law 14/2006, on Assisted Human Reproduction Techniques).

The judgement was supported by dissenting opinions that emphasised the principle of non-discrimination, respect for the practice adopted in a country like the United States, and the best interests of the child already born. Until now, the unstoppable reality of this fertility procedure was informally saved by the application of an Instruction of the DGRN, of 5 October 2010, which allowed, not without some technical problems derived from its low normative hierarchy, the registration of foreign decisions that attributed maternity through a 'light' incidental recognition, insofar as the central issue, which the judgment addressed, its clash with the imperative norm, was obviated.

The ruling, therefore, opens up a new scenario and it is the duty of the legislator to address the situation. This is the following: from the material civil perspective, there are two laws, one state law - law 14/2006 which openly prohibits surrogacy - and one autonomous law: law 25/2010, of 29 July, of the second book of the Civil Code of Catalonia - whose article 235-3, determines that filiation by nature, in relation to the mother, results from birth. It will always be possible, given the exclusive competence of the State (article 149.1.8) in matters of organisation of public registers, to establish with the status of law the registration in the Civil Register of maternity by substitution, produced in another country by raising the technique of the aforementioned Instruction. This solution, although farcical, saves a lot of trouble, subject to what will be said below.

It is, moreover, insofar as it is neutral, the preferred option in the work of the Hague Conference, which is progressing, albeit slowly, given the ideological burden of the matter and the strictly national competence it represents (of course, in the legislative sphere of the European Union, there is currently no competence in this area). Indeed, at its annual general affairs and policy meeting last April, the Conference discussed this dossier, which will remain on the agenda after having collected information over the last few years and launched a form (see www.hcch.net).

As a result, it seems quite clear that the only way forward at the international level is purely registry-based, by establishing a procedure of
birth registration, which encapsulates surrogate motherhood, as a tertium genus with respect to adoption. It will depend on each State's level of constitutional commitment to the investigation of maternity and paternity, a right, moreover, recognised in article 7, number 1, of the Convention on the Rights of the Child of 20 November 1989. This solution is, however, insufficient. It may be adequate for first world surrogacy, such as in California, where there is a non-contentious process prior to or after the birth, the child acquires American nationality, and the biological mother has adequate legal and contractual representation. Unfortunately, this is not the end of the story.

Other countries: Mexico, Thailand, India, Ukraine... may - perhaps - present a very different or at least plural reality, as they do not contemplate a procedure that can be homologated from the perspective of Spanish civil registry incidental recognition. And in any case, the best interests of the child clash with the aforementioned judgement, which affects, above all other considerations, the application of public order due to the infringement of an imperative rule.

For this reason, it cannot be denied that the most appropriate - or at least the most honest - route would be to repeal the aforementioned article 10 of Law 14/2006, ensuring that this is done simultaneously with the modification of the Catalan precept, in order to achieve a desirable legislative uniformity.

This solution, which is the only one that could really save the doctrine resulting from the judgement that causes this reflection, is not, in turn, free of difficulties: leaving aside the ideological ones, curiously enough, diametrically opposed to abortion, as it means betting on the life of someone who otherwise could not procreate, it may find some limits susceptible to regulation: that the couple - or the individual - must pass qualification tests equivalent to those required for adoption; that the relationship with the biological mother must not be commercial but altruistic, except for a regulated compensation, which by the way already exists for oocyte donors; that a child should not be born à la carte except for accredited medical reasons (although it is possible that this already exists in Spain); that the child thus born - the cornerstone of the system - should have the right to know its identity by means of the registration technique mentioned above and that specialised clinics should have protocols established for them that already exist at present for other reproductive techniques.

In my opinion, this is the most correct solution and the one that would help to eradicate human farms as far as Spain is concerned. But other unmanageable issues cannot be ignored. Thus, it will happen that those who have more economic possibilities will be able to choose to go abroad to be mothers of intention in order not to suffer a pregnancy which, although possible, they do not want, or to be able to choose a child with certain physical characteristics, of course the sex, but also its eye colour and intelligence index, so that if an incidental recognition is possible, its conception remains under the secrecy of medical protocol. But this is inevitable. As inevitable will be the end, except for strict humanitarian reasons, of international adoption.

In my opinion, this is the most correct solution and the one that would help to eradicate human farms as far as Spain is concerned. But other unmanageable issues cannot be ignored. Thus, it will happen that those who have more economic possibilities will be able to choose to go abroad to be mothers of intention in order not to suffer a pregnancy that, although possible, they do not want, or to be able to choose a child with certain physical characteristics, of course the sex, but also its eye colour and intelligence index, so that if an incidental recognition is possible, its conception will remain under the secrecy of medical protocol.