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Justice accepts the validity of surrogacy contracts when they are limited to legal advice

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Hiring a surrogate mother is not legal in Spain. That’s what the law has said for over 12 years, and the Supreme Court has said it repeatedly, forcefully. Anyone who wants to adopt a child through surrogacy must go to a country where it is legal and then return to Spain. Civil judges have also ruled that a contract that involves paying a woman to bear another man’s child is void. But the court found a loophole in which a surrogacy contract can be considered valid: when, although the contract includes an obligation to produce a child, it signs only to provide “legal advice” to couples living abroad.

This is how the Provincial Court of Barcelona ruled a few weeks ago in the case of a couple defended by lawyer Joana Marin Fonseca, who sued the company Subrogalia. They demanded all the money they contributed during the surrogacy process, which was supposed to take place in the Mexican state of Tabasco. They paid more than 65,000 euros for a “premium package,” Justice says, but the operation did not go as promised: the Mexican authorities banned surrogacy, a legal consulting agency recommended continuing in Russia, and they finally stopped the process. and requested a refund.

This isn’t the first case that surrogacy courts have examined and these “legal advice” contracts, but it’s one that best illustrates the legal debate over whether these contracts are legal. Initially, a court in the Catalan capital rejected the couple’s claim that the contract with Subrogalia was void and involved prohibited activities, in addition to an attempt to circumvent the ban in Spain. This company, according to its website, has received no new requests since January 2017.

The purpose of the operation was clear in the contract. “The company guarantees the successful completion of the contract, i.e. the birth of at least one child,” reads the clause titled “Guarantee of Success.” And the court, in the first instance, realized that “it is clear that we have a contract with an illegal purpose” because “there is no doubt” that the couple knew that surrogacy “was and is prohibited in Spain”.

To the first judge who heard the case, the signing of the treaty sought to “recognize a state’s prohibited activity” in cooperation with a third state, in this case Mexico. “If a child is born abroad through the technique of surrogacy, the state must refuse, even partially and indirectly, to maintain the family integration of the minor, in such cases it cannot do so,” reads the first sentence. Giving them justification and the right to recover the money invested in the “premium package” of Subrogalia, according to the court, involves “legal protection of the target result by illegal and fraudulent means”.

The debate over whether the contract was valid reached a Barcelona court, which ruled last September for the couple, forcing Subrogalia to return more than €70,300 he had put into their rent. Civil judges conclude that the contract they signed was for legal advice and did not include surrogacy itself. “What the defendants offered was legal advice in both countries to resolve all kinds of difficulties that this issue raised,” says the Barcelona court, so “the violation is clear,” according to the resolution.

The judges explain that “it is one thing that it cannot be carried out in Spain”, but “another thing is that it has been carried out in another country where it is not prohibited, the desire for paternity cannot be ended in the same way. proposed by the defendants, without prejudice to the Spanish legal system”. And they recall that regarding the registration of these children in consulates, “we saw discrepancies between the General Directorate of the Registry and the notaries”, as well as “in the Supreme Court itself”.

The contract, the judges ruled, was about legal advice and could be declared void because of the vice of consent “because the contracts have an illegal subject matter”. Contrary to the sentence handed down by the court of first instance: “I declare the contracts void for the presence of an illegal object: obtaining a biological child from one of the actors through surrogacy.”

The Supreme Court and its Civil Chamber have ruled several times and clearly regarding surrogacy: it is not legal in Spain and any contract in this regard is void, although no specific case has yet been studied, such as these agencies are sheltering. Under the umbrella of ‘legal advice’ for couples. He repeatedly spoke, for example, about the children of babies born by this method and clearly said: “Mothers and children are treated like commodities.”

He said this in his sentencing in April of this year, although he had already ruled to the same effect in previous cases. The judges studied the case of a woman who obtained a child through surrogacy in Mexico and requested its registration in the civil registry. In that sentence, the justices reiterated that surrogacy agreements “violate the fundamental rights of both the pregnant woman and the unborn child and are therefore clearly against our public order.”

This resolution, as reported by, reflected the clauses of one of these contracts, which are rarely exceeded. For example, one item described the procedure if a “pregnant woman” suffered a life-threatening disease or injury, such as brain death. “The mother-to-be has the right to maintain life with medical assistance in order to save the fetus until the attending physician determines that she is ready for birth,” says the contract of this Mexico-based company.

This is not the first claim that Spanish courts, particularly in Barcelona, ​​have examined contracts signed by couples with subrogalia. There have been several people who have sued judges to have their contracts revoked, and several cases have been decided by the same court throughout 2019, with none of these cases reaching the Supreme Court.

That year, judges at the Regional Court of Barcelona agreed with six couples in five rulings, which awarded compensation between 19,000 and 55,000 euros, depending on the case, without taking interest into account. The Supreme Court and its Civil Chamber databases do not show any decisions admitting or refusing to hear these cases since then, although several decisions have been appealed.

In these cases, the judges understood that the contract they entered into with Subrogalia was not a lease of services, but for work, the purpose of which was “the birth of a boy and a girl.” Neither couple received the child they paid for, and the judges found there had been a breach of contract and ordered the money back. In some cases, part of the breach came from the intervention of a clinic that did not have the necessary authorization.

Most of these cases reached the provincial court with the consent of the court to award compensation to the applicant couples, and therefore the judges did not need to argue the validity of the agreement, which neither party had raised. This case, revealed today by, is the first in which the court refused to refund the money because they signed a contract for an activity prohibited in Spain, related to surrogacy, and not for simple legal advice.

Source: El Diario


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