In Spain, surrogacy carried out abroad considered contrary to public order
In Europe, surrogate motherhood has become a new area of legal and ideological confrontation. The stakes are high: the desire for a child is at stake, as are the lives and dignity of many women, often in precarious situations, and of children whose separation from their surrogate mother at birth is expressly planned for the benefit of their sponsors. Most of these transactions are also international, making it difficult for any country that is more concerned about the rights and welfare of these children and the surrogate mothers involved to oppose them.
Spain is one of the countries ending the permissive practice of surrogacy abroad. The practice of surrogacy in Spain has been prohibited by law since 2006. However, in the case of surrogacy carried out abroad, until now the child born as a result of surrogacy could be registered directly with the civil registry if the sponsors presented a court decision issued in the country where the surrogacy was carried out, establishing filiation between the sponsors and the child. In 2023 alone, 154 children born as a result of surrogacy were registered in this way in Spain.
With an instruction dated 28 April 2025, the left-wing Spanish government has just prohibited the direct registration in the civil register of children born by surrogacy abroad. In order to obtain this registration, the persons commissioning the child will have to prove the existence of a biological link ‘between one of the parents of intention and the child’ or initiate an adoption procedure.
The Spanish regulations thus comply with the recent case law of the country's Supreme Court, which, in a decision dated 4 December 2024, declared surrogacy contracts to be contrary to public policy. According to the Supreme Court, these contracts seriously infringe the rights of the child and the pregnant woman.
Spain is therefore reclaiming the power to recognise a parent-child relationship or adoption, on the basis of biological reality or a formal adoption procedure, where the biological link is lacking. However, the measure does not go as far as in Italy, which prohibits surrogacy not only on its territory but also abroad, making it punishable by criminal penalties.
In the United Kingdom, the government has chosen to pause in the facilitation of surrogate motherhood on national territory, due to other ‘essential priorities’.
It should be remembered that in Belgium, surrogate motherhood - whether carried out within the country or abroad - is neither legal nor prohibited, but tolerated. Given the absence of any firm, authoritative law or case law on the issue, the authorities and courts are more or less open to recognising parentage on the basis of a court decision or a birth certificate drawn up in the country where the surrogacy took place.
