Spain Just Changed Everything About International Surrogacy Recognition!

There has been a seismic change in how Spain will treat children born through international surrogacy. If you are Spanish or hold Spanish citizenship and are considering surrogacy overseas, this update could drastically alter your family-building plans. I am Stephen Page from Page Provan family and fertility lawyers and I want to set out, plainly and practically, what the new decree means, who it affects, and the steps you should consider now.

Quick summary of the change

Spain has issued a decree that effectively blocks recognition, in Spain, of children born through surrogacy abroad unless one of two conditions is met:

• The intended parent can prove they are a biological parent of the child; or
• They obtain a formal adoption of the child under the Spanish system.

“We will not recognise children born through surrogacy overseas unless you prove that you are a biological parent or you obtain adoption.”

This is a sharp shift. Spain has long been a hub for assisted reproduction in other areas, particularly egg donation. Spain remains one of the European centres for egg donation. But surrogacy is treated completely differently. The decree signals a deliberate policy: donation is accepted, surrogacy is not.

Why this is such a big deal

Under previous practice in many countries, the legal status of a child born overseas via surrogacy was resolved by having the foreign birth and parentage recognised and then entered into the home country records, or by securing an adoption if parentage was not straightforward. Spain’s decree imposes a strict pathway: biological proof or adoption. For many prospective parents, meeting either requirement is straightforward; for others, it will be very difficult or practically impossible.

That difficulty affects a number of common surrogacy scenarios:

• Same-sex male couples using a surrogate and donor egg will not have a Spanish-recognised parent-child relationship unless one of the men can show a biological link or they complete an adoption in Spain.
• Intended parents using a donor egg will not be biological parents of the child and therefore will need to pursue adoption to obtain recognition in Spain.
• Heterosexual couples where one partner provides sperm may be able to show a genetic link and thus meet the biological test. But this depends on the specifics of the surrogacy arrangement and the evidence that can be produced.

Why Spain treats donation and surrogacy differently

Spain’s reproductive law and policy have long favoured donation-based assisted reproduction. The Spanish system supports and regulates egg and sperm donation and has become a centre for those services in Europe. Surrogacy, however, is treated with strong suspicion and legal opposition. The decree formalises that stance: donation is permitted and supported; surrogacy is effectively excluded unless the stringent conditions are met.

The practical consequence is a paradox. Spain encourages the use of donated gametes and has built robust clinical and legal frameworks for those treatments. At the same time, it is closing the door on recognising children born through surrogacy overseas, even when the family-building was lawful where it occurred.

Who will be affected

The new requirement will primarily affect:

• Spanish nationals and Spanish citizens who have used or plan to use surrogacy services outside Spain;
• Dual nationals where Spain is one of the citizenships; and
• Children born overseas via surrogacy who need Spanish recognition of their parentage or civil status.

Some Australians and other nationals may be impacted only if they hold Spanish citizenship. If you are solely an Australian citizen and not Spanish, the decree will not apply directly to your legal relationship with your child within Australia. However, any cross-border implications involving Spain will need careful assessment.

Practical implications for parents and children

There are several hard realities to keep in mind:

• Recognition delays: If adoption is required to acquire Spanish recognition, expect lengthy administrative and judicial processes. Adoption in Spain is not a quick fix.
• Documentation hurdles: Proving a biological link will rely on genetic testing and robust forensic documentation that Spanish authorities will accept. The evidence must be assembled precisely and legally.
• Travel and citizenship: Without recognition, a child born overseas may face difficulties entering Spain, being registered in Spanish civil records, or accessing rights that flow from Spanish parentage, such as citizenship or social benefits.
• Legal uncertainty: If adoption appears effectively impossible due to procedural or policy barriers, families could be left in limbo for years while they pursue redress.

Is the decree lawful under human rights law?

This decree raises significant human rights questions. If the new requirement makes it practically impossible for a family to secure recognition and the state’s procedures are disproportionate, then there is a realistic prospect of a successful challenge before the European Court of Human Rights. The likely legal argument will be that the decree interferes with the right to respect for private and family life and discriminates against certain family forms.

However, there are two important practical points to remember:

1. Any challenge to the European Court of Human Rights is long. It can take many years to reach the Court and to obtain a legally binding remedy. That timeline may not help families who need immediate certainty about the status of their child.
2. Success is not guaranteed. While the Court has previously found breaches where domestic law or practice made parentage recognition impossible, each case turns on its facts and the availability of alternative routes home states can reasonably provide.

What to do if you are Spanish or hold Spanish citizenship and considering surrogacy

If you are contemplating surrogacy or are mid-process, take urgent, practical steps to protect your family. My immediate recommendations are:

• Get legal advice in both jurisdictions. Consult a lawyer experienced in Spanish family law and one experienced in the law of the country where the surrogacy will occur. Different countries have different parentage rules and evidence standards.
• Plan for genetic evidence. If there is any possibility of a biological link to an intended parent, ensure appropriate genetic testing is carried out in a way that will be formally admissible in Spain.
• Understand adoption requirements. If you expect adoption might be required, obtain clear guidance on the Spanish adoption process and on whether adoption is realistically achievable for your family given your circumstances.
• Consider alternative pathways. Where possible, explore building a legal relationship with the child in the country of birth and ensuring that paperwork is complete, certified and apostilled. This can improve the prospects of eventual recognition in Spain or form a basis for other legal remedies.
• Prepare for delay and contingency. Family recognition issues can take months or years to resolve. Have a contingency plan for travel, residency and access to health care and education for the child.

Possible legal strategies

There are several legal approaches families may consider, depending on the circumstances:

• Attempt to establish biological parentage through DNA evidence where applicable. If one intended parent is genetically related to the child, that may satisfy the new requirement for recognition.
• Pursue adoption in Spain if biological proof is impossible. This can be time consuming and requires meeting Spanish adoption criteria.
• Challenge the decree on human rights grounds. If adoption is an impossible barrier for a particular family, a human rights challenge may succeed, but expect a lengthy process.
• Secure as much foreign legal recognition as possible and preserve documentary evidence. Comprehensive documentation from the country where the child was born will strengthen any recognition or challenge efforts in Spain.

Real-world examples to illustrate the problem

Consider a few scenarios:

• A same-sex male couple uses a surrogate and donor egg abroad. Neither man is biologically related to the child. Under the decree they will likely need to complete an adoption in Spain to be recognised as parents. That adoption may be lengthy and complex.
• A heterosexual couple uses a surrogate with the male partner’s sperm and a donor egg. The male partner has a biological connection and could seek recognition based on that genetic link. The female partner, if not biological, may need a subsequent adoption unless Spanish authorities are prepared to accept the family structure on other grounds.
• A dual national who is Spanish gives up on surrogacy because of the anticipated difficulty in securing recognition and instead considers egg donation within Spain. That alternative is feasible because donation is accepted in Spain but it may not be appropriate or desired for every family.

Final thoughts and urgent next steps

The Spanish decree represents a significant policy shift. While Spain continues to embrace assisted reproduction via donation, it has drawn a firm line against recognising surrogacy arrangements from overseas unless there is clear biological parentage or a completed adoption. This will leave some families with difficult choices and potentially long legal battles.

If you are Spanish or hold Spanish citizenship and surrogacy is part of your family plan, do not delay. Get specialist legal advice both in Spain and in the country where you intend to pursue surrogacy. Gather and preserve all medical and genetic evidence, and prepare for the likelihood of longer timelines and extra paperwork. If adoption is a possible route, explore that option early and understand the practical hurdles. If adoption appears impossible, be aware of potential human rights remedies, but also of their length and uncertainty.

My final, practical recommendation: plan for the worst and hope for the best. Make your decisions with full knowledge of the Spanish position so you do not face unwelcome surprises when seeking recognition for your child.

Checklist: Immediate actions for prospective parents with Spanish citizenship

• Contact a Spanish family law specialist immediately.
• Obtain legal advice in the surrogacy destination country.
• Ensure genetic testing where relevant is carried out and properly documented.
• Secure all clinical, consent and surrogacy documents and have them certified and apostilled if required.
• Investigate Spanish adoption procedures now if you think adoption may be required.
• Consider contingency plans for citizenship, travel and care for the child while recognition is unresolved.

If you need help navigating these steps or want more detailed guidance tailored to your situation, seek experienced legal counsel in both jurisdictions without delay. The legal landscape has changed and early preparation will make a decisive difference for many families.