Surrogacy is an increasingly widespread reproduction practice throughout the world. Although its origin dates back to the 1970s, it was not until a decade ago that it gained international popularity. Today, in many countries it is an alternative for couples who cannot have children, although it is not exempt from ethical, legal and social controversies. In Stage Infant we explain what it consists of and how this practice is understood in Spain.

What does surrogacy consist of?

Surrogacy or substitution gestation is a reproduction practice in which, in addition to the future parents, known as intended parents, a surrogate mother participates. In other words, it is a practice in which a woman agrees to become pregnant, gestate and give birth to the child of another person or couple who, after the end of the pregnancy, will become the legal parents of the baby.

Also known as surrogacy, the practice is usually based on a contract between both parties whereby the surrogate mother, with full capacity for conscience and complete freedom, waives the right to motherhood in favor of the intended parents. This means that, at the end of the pregnancy, the surrogate mother has the legal obligation to deliver the child to her intended parents.

The main types of surrogacy

Surrogacy refers to the practice of reproduction in a general sense, but it is usually classified into different types according to the genetic link of the surrogate mother, the economic motivation or the family link. This is the best known classification:

1. According to the genetic link of the pregnant woman

• Traditional surrogacy. Also known as partial surrogacy, it refers to cases in which the surrogate mother provides her own eggs and, therefore, has a direct genetic relationship with her child. This type of surrogacy is usually carried out through artificial insemination with semen from the intended father, although it can also be done through in vitro fertilization with eggs from the surrogate mother. In some cases, it can be done naturally.
• Gestational surrogacy. In this type of surrogacy, the surrogate mother does not have a direct genetic relationship with the child since it is carried out with the ovule and sperm of third parties, usually those provided by the intended parents. However, in some cases the sperm is provided by the intended father while the eggs are provided by an external donor. In any case, the assisted reproduction technique that is most used in these situations is usually in vitro fertilization .

2. According to economic motivation

• Commercial surrogacy. Commercial surrogacy is known as that in which the surrogate mother agrees to have a pregnancy and carry it to term in exchange for a previously determined financial compensation . The economic terms may vary from one case to another and usually include, in addition to the expenses derived from the pregnancy, a remuneration for accessing the practice.
• Altruistic surrogacy. Surrogacy is known as that in which the surrogate mother agrees to become pregnant and carry the pregnancy to term altruistically, that is, without any financial compensation. In these cases, the surrogate mother can receive financial aid as compensation for medical expenses, time spent or physical discomfort that prevents her from working for a certain period of time, but in no case does she agree for a purely financial matter.

3. According to the family bond

• Extra-family surrogacy. Reference is made to any surrogacy in which the surrogate mother has no family relationship with any of the intended parents. In these cases, the surrogate mother is usually a completely unknown person or someone close to her who offers to carry out the procedure.
• Intrafamily surrogacy. Reference is made to surrogacy in which the surrogate mother maintains a family bond with one of the intended parents. Although in many of these cases there is usually no economic motivation, there may often be the possibility of coercion or pressure on the surrogate mother. They are not usually very common due to medical problems due to consanguinity that may occur.

When is surrogacy an option?

Many of the people who resort to surrogacy are usually heterosexual couples who have problems conceiving and who, after undergoing several in vitro fertilization processes, have failed. It is also an option used by single women and homosexual couples who cannot conceive. In the latter case, if it is a couple between men, it is usually known as surrogacy due to structural or constitutional sterility.

Is surrogacy legal in Spain?

According to the Association for Surrogacy in Spain, this practice is illegal in the country. Article 10 of Law 14/2006 on Assisted Human Reproduction Techniques establishes that the contract by which the gestation is agreed by a woman who renounces maternal affiliation in favor of the contracting party or third party is null and void. It also establishes that the filiation of children born by surrogacy will be determined by the birth. This means that surrogacy is not allowed in Spain.

However, the Instruction of October 5, 2010 of the General Directorate of Registries and Notaries accepts surrogacy by contemplating the registration in the Civil Registry of children born through this technique, provided that the procedure has been carried out in a country in which said technique is regulated, one of the parents is Spanish and there is a judicial resolution that guarantees the rights of the pregnant woman.

Basically, the law prohibits carrying out surrogacy in Spanish territory, but accepts the registration of children born through this technique in countries where it is allowed.

How much does surrogacy cost?

In cases of commercial surrogacy, prices usually vary from one case to another depending on the country where it is performed, the medical expenses that are required and the economic demands of the surrogate mother. In general, the cost of this procedure ranges between 50,000 and 200,000 euros.

The form of payment can also vary from one case to another, but the most common is to make a first payment before the surrogate mother becomes pregnant, another when the pregnancy is confirmed, a third around the seventh or eighth month and a final one when delivers the baby to the intended parents.