Dean Masserman from our firm weighs in with his thoughts on this disappointing legal development out of Spain:
In a controversial 5-4 decision, the Spanish Supreme Court has ruled against a gay couple seeking to complete a Civil Registration (Spanish Citizenship) of twin babies born to two gay men from Spain through surrogacy in San Diego, California. According to the news article, the Spanish court essentially stated that a Civil Registration of a California birth which listed two men as parents was not allowable because the Spanish government does not recognize surrogacy, and according to Spanish law, “the parentage of children born through gestational surrogacy will be determined by birth,” so it is not legally possible for two men to be listed as parents of minor children. Some people are interpreting this as a nullification of the 2010 instruction on registering children born abroad through surrogacy. That may be too broad an interpretation and people should not yet panic.
First of all, although the Supreme Court in Spain is the highest judiciary body, an exception exists where one of the parties claims that their constitutional rights have been infringed upon. In that case, a decision by the Spanish Supreme Court can be appealed to the Constitutional Court. We have confirmed with a reliable source that such a claim will be made to the Constitutional Court, which is a process that could take 2-3 years. Article 14 of the Spanish Constitution states “Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.” Based upon a claim of an equal protection violation, the Constitutional Court could overturn this decision.
It is also very important to understand the possible limitations of the ruling, and also recognize what the court did NOT say. Although the full text of the decision is not yet available, we do know that this case involved a request by two gay men to BOTH be listed as parents in the Civil Registration, despite the fact that only one of them was the sperm donor. The court appears to have rejected the request and would not allow both men to be listed as parents. The newspaper article asserts that the court essentially stated that the non-contributing, i.e. non-biological man, had to go through what we would term “step-parent” adoption. If true, the decision would not prohibit a heterosexual couple or single parent (straight or gay) from completing a Civil Registration as long as the parent was a Spanish citizen, and was biologically related to the Child(ren). In other words, it would not be a nullification of the 2010 instruction on registering children born abroad through surrogacy. It would be a limitation that creates the need to complete an adoption before the registration. Most importantly, what does seem clear is that the court affirmed that the two men were the legal parents of the twins, they simply denied the request to complete the Civil Registration.
For the time being our interpretation of the ruling as it stands right now is that the procedure for finalizing parental rights on behalf of Spanish clients in the United States remains unchanged. Children will receive a U.S. passport and can enter Spain and reside with their parent(s). The question is simply what steps will be necessary to complete the Civil Registration. It may become necessary for one or both parents to undergo a “step-parent” adoption in Spain before the Civil Registration will be permitted and list them as parent. As for donated embryos or “double donations,” i.e. donated sperm and egg, it would be wise to advise clients that they may not be able to ever register the Child(ren) as Spanish citizens unless the Constitutional Court overturns the decision.