A very disconcerting decision out of Valencia, Spain whose ramifications might be broader than originally reported:

The twins were born legally to a surrogate mother in the United States

The judge in First Instance Court 15 in Valencia has decided to annul the entry made in the Consular Civil Registry in Los Angeles, by a Spanish gay male married couple who were registered as the parents of twins. The twins were born legally in the United States by a surrogate mother.

Spanish legislation does not consider the surrogate process as legal, and now the judge has cancelled their registration after being appealed to do by the Prosecutor’s Office. The registration of the twins had previously been accepted by the DGRN, the Directorate General of Registries and Notaries, which considered at the time, in February 2009, that the application met all the formal requirements and did not break any international Spanish public order.

The Spanish Federation of Lesbians, Gays, Transsexuals and Bisexuals, FELGTB, described the Prosecutor’s attitude in presenting an appeal as ‘homophobic’. The judge explained the decision by saying the law in Spain is determined by the person who actually gave birth, and that person should be inscribed as a parent. The magistrate said that the same conclusion would be reached if the couple were men, women or straight, as the law does not distinguish between them. The gay couple say they will now place an appeal against the decision which they said showed that you can no longer say that there is equality in Spain.

While this couple is righteously indignant about the ruling, it does not appear this decision was based upon the couple’s sexual orientation. If the Judge is to be believed, then the outcome would be the same regardless of whether the Intended Parents are heterosexual or homosexual. This ruling appears to be the first since June when Spain joined 7 other European countries that sent written notifications to IVF clinics in India to not entertain surrogacy cases of citizens from their countries.

There are some unanswered questions as well about the impact of this decision, including: 1) Why are the twins not entitled to Spanish citizenship based upon the biological father’s Spanish citizenship; 2) Even if Spain were to recognize the Surrogate as the legal mother, why would they not recognize the biological father as the legal father; 3) Was the Surrogate married and, if so, did that play a role in the decision (which could answer my question #1); and 4) Will the twins be allowed to remain in the country while their parents perfect their immigration status?

This decision is yet another troubling reminder about the perilous nature of surrogacy today for international couples. For anyone considering surrogacy, in addition to performing your due diligence about the underlying legality of the arrangements and the methods by which your parental rights will be finalized, it is critical that you speak to an immigration and family law attorney in your country of residence to assess the impact of any applicable immigration and parentage laws. Unfortunately, given some of the situations that have recently arisen in India and the almost knee-jerk response by many European countries, I’m afraid these issues will remain prevalent for the foreseeable future.