Spanish High Court rejects commercial surrogacy as ‘exploitation’

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Spain’s High Court has ruled that commercial surrogacy constitutes “unacceptable exploitation” of both the child and the biological mother, according to El Pais.

The case involved a Spanish woman who entered into a contract with a woman from the Mexican state of Tabasco in 2015 to carry a child with the help of a surrogacy agency.

The court said adoption was the best option to protect “the best interests of the child”. “Both are treated as mere objects, and not as persons endowed with the dignity of their condition as human beings and the fundamental rights inherent in this dignity,” the court said.

The court was troubled by the wording of the surrogacy contract. The biological mother had to agree to pass the child immediately after delivery to the commissioning mother, to maintain a constant nutritious diet, to have frequent ultrasounds, to abstain from sexual intercourse, not to have tattoos, piercings or cosmetic surgery, not to exercise vigorously and waive their right to medical secrecy.

The contract also left in the hands of the commissioning mother the final decision on the life of the surrogate mother if she were to have a life-threatening illness or injury, including brain death. “The mother has the right to keep her alive with medical assistance, for the purpose of saving the fetus until the attending physician determines that it is ready for birth,” the contract states.

The court recalled that commercial surrogacy is not only contrary to Spanish law but also to international commitments signed by Spain, such as the Convention on the Rights of the Child and the Convention on the Elimination of All forms of discrimination against women.

After enacting the law, the court lamented that its decision was out of touch with the reality of life in Spain today. “Surrogacy agencies operate unimpeded in our country; they advertise their activities […] despite the fact that art. 3.1 of the General Advertising Law considers as illegal advertising that threatens the dignity of the person or violates the values ​​and rights recognized by the Spanish Constitution”. They even organize fairs to market their products, he complained.

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