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Surrogacy gestation and legal status in Spain

Surrogacy gestation, also known as substitution gestation or subrogated motherhood, is a reproductive process in which a woman, called a surrogate mother, gestates to an embryo that is generated by artificial insemination or in vitro fertilization with the genetic material of the intentional parent and a donation of eggs or gametes from another person. It is a technique that is used when a single partner or person has fertility problems or is unable to gestate and wishes to have a child with a genetic bond.

The mother under-represented has no genetic relationship to the future child, but gests the embryo until birth. This reproductive technique raises ethical questions relating to bioethics, maternal affiliation and the link between the biological mother and the future child. In Spain, it is a controversial topic that has generated wide social and legal debate and the law of assisted reproduction regulates this clinical practice and associated medical expenses.

What is the overriding gestation and how does it work?

Surrogacy gestation can be performed in two ways: traditional and gestational surrogate. In the first, the gestating woman contributes the egg and is artificially inseminated with the sperm of the biological father. In gestation, an egg from the biological mother or donor is used and fertilized with the biological father’s sperm. Afterwards, the embryo is implanted into the uterus of the gestating woman.

What is the legal situation in Spain?

In Spain, it is considered illegal. Spanish law stipulates that only assisted reproduction techniques that do not represent a profit or a loss to women’s dignity are permitted. Subrogated gestation is therefore considered a business that violates the rights of women and children.

Law 14/2006 of 26 May governs reproductive treatments assisted in the country, but specifically prohibits the carrying out of motherhood undergraduates. Legislation regards the woman giving birth to the baby as her legal mother, independent of the genetic relationship. Consequently, any contract for an exemption would not have legal validity in Spain. Promotion of substitution gestation by the BOE of February 2023 is also prohibited.

Furthermore, it can lead to complex and delicate situations, such as the exploitation of women and the commercialisation of the human body. Most European countries, including Spain, have a critical stance towards overruled gestation and consider it unacceptable. For this reason, people who wish to use this technique often seek services abroad, where laws are more permissive. However, this may lead to complicated legal and ethical situations, and it is important that any decision on this matter is taken with expert advice and always taking into account the rights and dignity of all the persons involved.

Why is this controversial?

Surrogacy gestation is a controversial issue because it involves a number of ethical and legal dilemmas. On the one hand, there is the argument that overgrowth may be a solution for couples who cannot have children naturally or through other assisted reproduction techniques. On the other hand, it is argued that overgrowth may be exploitative and that it infringes the rights of women and children.

From an ethical point of view, the surrogacy gestation poses a very complex moral problem. Firstly, consideration must be given to the fact that the gestating woman cedes her body and her health during pregnancy in return for financial remuneration. This may be considered by some as a form of exploitation, as it involves the use of its body as a commodity.

On the other hand, it also raises an ethical dilemma as regards the rights of children born out of this process. Some voices point out that children who are born through undergrowth may feel disconnected from their lineage and have difficulty accepting their biological identity. In addition, it is also argued that these children can be treated as objects of desire and the object of satisfying the needs of the couples who request them.

From a legal point of view, this is a controversial issue and varies widely according to the legislation of each country. In some places, overgrowth is prohibited and considered illegal, while in others it is permitted but certain conditions and restrictions are laid down.

How does it affect the gestating woman?

It can have an emotional and psychological impact on the gestating woman. It can feel like an object or a means to fulfill other people’s wishes, which can generate great emotional stress. In addition, the gestating woman may also face medical complications during pregnancy, and the process of separating from the baby at birth may be traumatic. In many cases, pregnant women do not have access to adequate health services and may suffer abuse or exploitation.

What is the legal situation in other countries?

Surrogacy gestation varies from country to country. In some cases, overridden gestation is permitted only for married heterosexual couples, while in other countries it is permitted for same-sex and single-sex couples.

In the United States, regulation varies from state to state. In some states, such as California, surrogacy gestation is legal and permitted for same-sex couples and singles. However, there are certain requirements for committing parents, such as being American citizens or permanent residents, having a psychological assessment and signing a contract with the gestant.

In Ukraine it is legal and permitted for married heterosexual couples and singles. The process of overriding gestation is regulated by law and requires all participants to sign a contract establishing their rights and responsibilities.

In Russia it is legal and permitted for married heterosexual couples and singles. In addition, it is required that the parents responsible are Russian citizens or have permanent residence in the country.

In India it is legal and permitted for married heterosexual couples and singles. However, under-growth for same-sex couples and foreigners was banned in 2015.

What alternatives are there?

There are alternatives such as in vitro adoption or fertilization with egg cells or donor sperm. Assistive reproduction techniques are also being developed that allow the creation of embryos from skin cells, which could avoid the need to use egg cells and donor sperm.


Surrogacy gestation is a controversial issue that raises a number of ethical, legal and social dilemmas. While it may be a solution for couples who cannot have children naturally, it may also be exploitative and infringe the rights of women and children. It is necessary to continue the debate on under-growth and look for alternatives to help couples who want to have children without violating human rights.

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