Last December, Barcelona IVF posed the following question in a public survey:
Surrogacy is NOT legal in Spain. Do you think it should be legalized?
The majority of respondents (67%) believed it should be legalized in cases with medical justification. Seventeen percent felt it should not be allowed under any circumstance, while another 17% supported its legalization in all cases.
Recently, the topic of surrogacy has been frequently featured in the media due to several celebrities opting for this path to parenthood. Many couples in Spain also choose surrogacy in countries where this practice is legal, often due to medical or personal reasons.
Surrogacy—also referred to as gestational surrogacy or surrogate motherhood—is not legally authorized in Spain. Spanish law declares null and void any contract between third parties and a woman for the transfer of a child born from a pregnancy, whether the arrangement is compensated or altruistic. By law, parentage is determined by the woman who gives birth.
This practice is certainly the subject of ongoing legal and ethical debate. Like many medical techniques, if misused, it can lead to ethically questionable situations—such as the exploitation of economically vulnerable women, or cases where individuals seek to "avoid" the burdens of pregnancy, particularly when related to career progression or body image concerns.
However, denying access to this option for women who are medically unable to carry a pregnancy may also infringe on their reproductive rights and their ability to have children. In the United States, this is considered a fundamental right, derived from the broader right to privacy. In Europe, there is still ongoing debate about whether procreation—actively creating life—is a legal right. In fact, neither the Universal Declaration of Human Rights, nor the European Convention on Human Rights, nor the Spanish Constitution explicitly mention this right, although all recognize the right to form a family.
Despite the lack of explicit legal recognition, some European Union countries, such as the United Kingdom and Greece, do allow surrogacy under specific and restrictive conditions.
It is true that careful regulation is necessary to prevent a range of complex situations that may arise during the approximately nine-month process. These include the separation of the intended parents during the pregnancy, serious health risks to the surrogate, especially in multiple pregnancies, or the surrogate mother refusing to relinquish the child after birth.
There is also a clear need for restrictive legislation to prevent misuse of this practice—similar to what already exists in Spain regarding egg donation , which is only permitted under medical indication, or embryo selection for therapeutic purposes, where each case must be reviewed and approved by a committee of experts.
We believe that Spain has both the legislative capacity and the ethical maturity to establish appropriate conditions under which a pregnancy could be carried by a surrogate mother.
Without debating whether reproduction is an explicit legal right, our position is that denying access to surrogacy for certain individuals constitutes a discriminatory barrier—especially when other patients with infertility due to the absence or dysfunction of ovaries (e.g., early menopause) can still become mothers through egg donation. If lacking functional ovaries does not prevent motherhood, lacking a functional uterus should not either.
Therefore, it would be relatively straightforward to define the patient groups eligible for surrogacy. These would include women without a uterus, or those in whom it can be clearly demonstrated (ideally by more than one medical specialist or an expert committee) that their uterus is not capable of sustaining a pregnancy to term (e.g., due to repeated implantation failure or recurrent pregnancy loss).
The ethical discussion would remain more complex in cases where the body rejects pregnancies due to presumed autoimmune mechanisms that are not yet fully understood.
In our view, it would also not be difficult to define the terms of altruism or compensation in surrogacy, much like the Government of Catalonia has done in the case of egg donation.
Therefore, in agreement with the majority of survey respondents, we advocate for the creation of a cautious, balanced, and ethical legal framework for surrogacy—allowing access to women who have a medically verified reason for being unable to carry a pregnancy.
