Surrogacy has recently emerged on the political agenda in Spain, following the news that a renowned celebrity, Ana Obregón, had become a grand/mother through gestational surrogacy in the United States, at the age of 68, three years after the premature death of her biological son and using his genetic material. This complex combination of factors has resulted in a convoluted debate, which obfuscates the already complex issue of surrogacy with questions pertaining to ‘healthy’ mourning, the ‘appropriate’ age for motherhood and the posthumous use of genetic material. In the midst of this debate, it is important to note that the specific case being discussed (beyond the posthumous use of genetic material, which as its own regulation), that is, that of a single woman becoming a mother through surrogacy in a foreign country at the age of 68, would not be legally permitted in western Europe, even in those states with the most permissive surrogacy policies.
Surrogacy can be defined as the process whereby a person, the surrogate, agrees to carry a pregnancy to term and cede her parental rights over the child in favour of another person or persons, the intending parent(s). It tends to be classifiedas traditional or gestational, based on whether the gametes of the surrogate are employed or not; as commercial or altruistic, based on whether the surrogate is compensated economically or not, and as domestic or international, based on whether the surrogate resides in the same state as the intending parents or abroad.
The regulation of surrogacy across western Europe deviates significantly from the general trend towards permissiveness that characterises the regulation of other issues linked to human reproduction, such as abortion or assisted reproductive technologies, in that it displays the overwhelming prevalence of highly restrictive policies.
If we compare the surrogacy policies of ten western European states: Sweden, the Netherlands, the UK, Ireland, Austria, Germany, France, Italy, Portugal and Spain, which form a representative sample in geographical and political terms as well as in the permissiveness of their regulation of human reproduction, almost half of them explicitly prohibit all form of surrogacy, resulting in highly restrictive policies. Such is the case in Spain, France, Germany and Italy, where all surrogacy contracts are considered void and all its variants considered a crime, punished with up to five years in prison.
Other states ban only commercial surrogacy explicitly, and so altruistic surrogacy is implicitly allowed, resulting in intermediate polices. Such is the case of the Netherlands, which criminalised only the procurement and advertisement of surrogacy arrangements with up to one year in prison. Altruistic surrogacy, however, is regulated by the strict guidelines developed by the Dutch Society for Obstetrics and Gynaecology, which include the need for a medical indication, for the intending parents to be married and not older than forty and for the surrogate to already have a child, the consent of her partner if married and not be older than forty-four. To acquire legal parenthood, moreover, intending parents must go through adoption procedures.
Other states with surrogacy policies that can be considered intermediate are those in which it remains unregulated yet contiguous legislation results in either in its implicit ban or permission. Sweden, for example, only allows the use of either donated eggs or sperm, not both, unless medically indicated, while Austria, implicitly forbidding surrogacy. In Ireland, to the contrary, assisted reproductive techniques in general remain unregulated, hence any form of surrogacy can take place unofficially through existing adoption procedures.
Only two western European states currently allow and regulate altruistic surrogacy, the UK and Portugal, resulting in permissive policies. The UK criminalised commercial surrogacy in 1985. In 1990, it introduced parental orders as the figure through which legal parenthood was to be transferred from the surrogate to the intending parents on the condition that these were married, over age, resident in the UK and at least one of them had a genetic link to the child; that only reasonable expenses have been paid and the surrogate has given her consent. Since 2008 same sex couples also have access to surrogacy and single persons of both sexes were granted it in 2018, with the same conditions.
In Portugal, in turn, surrogacy was regulated in 2016, allowing only its altruistic variant, by women born without a uterus or with irreparable harms to it that prevent gestation, if one of the intended parents is genetically linked to the child, they are married and over age and a written contract has been drawn and pre-authorised by the National Council on Assisted Reproductive Techniques. Nine months after the law entered into force, in 2017, however, it was suspended, as the Constitutional Court declared various articles unconstitutional, in particular for the impossibility for the surrogate to withdraw her consent. A new law was adopted in 2021, allowing her to revoke her consent in the first twenty days after the birth. Such modification is not yet in force.
Presently, increasingly permissive surrogacy policies are being discussed in the UK, the Netherlands and Ireland. The UK announced that it would review its regulation in 2019, in order to substitute parental orders with the pre-authorisation by a licensed surrogacy civil society organisation and/or fertility clinic and removing the need for a genetic link. A draft bill is expected in 2023. The Netherlands, in turn, proposed a bill regulating altruistic surrogacy in 2020, which would give access to everyone, regardless of marital status, sexual orientation, age or medical condition, based on the pre-authorisation by a Court, yet maintained the need for a genetic link must exist between at least one intending parent and the child. The law is still being discussed. Finally, Ireland includes surrogacy in its draft regulation of assisted reproduction of 2022, which is still being processed in parliament. Such law will allow domestic, gestational and altruistic surrogacy without limitations in terms of sexual orientation or marital status, following it pre-authorisation by the Assisted Human Reproduction Regulatory Authority, on the condition that the surrogate is older than twenty-five, already has child and has been certified as suitable by a doctor, and the intended parent(s) <re over twenty-one, use the gametes of at least one of them and demand a parental order to acquire legal parenthood.
By Lucrecia Rubio Grundell