Commercial Surrogacy deemed ‘exploitative’ by Spanish Supreme Court

Spain’s highest court has ruled that commercial surrogacy is “unacceptable exploitation” of both mother and child.

Judges were considering a case where a woman in the Mexican state of Tabasco was asked to bear a child for a Spanish woman.

Commercial surrogacy is illegal in Spain, but agencies have been operating in the country to facilitate it through foreign women.

Judges stated that in commercial surrogacy, “both [child and mother] are treated as mere objects, not as persons endowed with dignity of their condition as human beings and the fundamental rights inherent to that dignity”.

They noted that the mother of a surrogate child had to maintain a particular diet, refrain from sexual intercourse, and waive her right to medical confidentiality, breaching other personal freedoms.

And they noted that the onus would be on the commissioning mother to make final decisions on the life of the surrogate mother if she were to have a life-threatening illness or injury.

The Court struck a blow against agencies operating in Spain that flout surrogacy rules by outsourcing the practice to other Spanish-speaking nations:

“Surrogacy agencies operate without any hindrance in our country; they advertise their activities … despite the fact that article 3.1 of the General Advertising Law regards advertising that threatens the dignity of the person or violates the values and rights recognised in the Spanish Constitution to be illegal.”

The Government of Spain will come under pressure to address the situation, closing any loopholes that allow exploitation of women.

A spokesperson for CARE commented: "We believe nations can and should work for a culture where both women and babies flourish – where all life is valued from conception and women are protected from harms.”