The new civil rights issue of the 21st century:
Under Spanish law only children of lesbian couples can be registered, but those of gay men who use a surrogate cannot. The Court in Valencia has refused to register the two children which two local gay men obtained from a surrogate mother in the United States into the Spanish Civil Registry.
The children were inscribed in the Consular Civil Registry in Los Angeles, but the Valencia court is in agreement with the sentence awarded by the Instruction Court 15 in Valencia in September 2010. The court argued then that under Spanish law in article ten of techniques of assisted reproduction it states ‘the contract is agreed by the pregnancy, with or without price, by a woman who gives maternal affiliation in favor of the contractor or a third’.
Today’s sentence considers that a human being cannot be the object of the trade of men, that is to say that the child cannot be object of a transaction. The court also considered that the married couple ‘fled from the imperative Spanish law’. They rejected the claim that the decision infringed on ‘the principle of equality or discrimination on reason of gender’. It noted that it would have allowed the registration of the children if it was a lesbian couple, as two women do not need to turn to a third woman to carry out the gestation.
The two men married in Spain in October 2005, and then three years later went to the United States for the surrogate mother procedure which is legal there but illegal in Spain. Now however it is impossible for the children to be registered in Spain.
Earlier one of the men told the El Mundo newspaper – ‘If the Spanish Constitution says that children of Spaniards are Spaniards, why are the children of gays excluded? We don’t want our children to be stateless.
Clearly a law like this would not survive an equal protection claim in the United States. Hopefully an attorney from Spain can weigh in and explain how Spain could justify such a transparently discriminatory and logically inconsistent law.