Imagine being born into a legal void — stateless, parentless, or invisible to the law. This is the harsh reality of countless children born through international surrogacy, whose intended parents are denied legal recognition by their home countries’ systems.
On May 1, the Spanish government issued a decree banning the direct registration of children born through surrogacy in its national civil registry. Under the new regulation, legal parentage will be recognized only in cases of biological or adoptive parentage and only when a family unit with sufficient legal and social guarantees is established.
This move is not entirely new. Since 2006, Spanish law has declared all surrogacy contracts to be null and void, stipulating that legal parentage must be determined exclusively by childbirth. Nevertheless, many Spanish nationals have turned to jurisdictions where surrogacy is legal. After the child’s birth, they typically seek to register the foreign parentage in Spain, using either an apostilled birth certificate, the surrogacy agreement, or a judicial decision from the foreign country that recognizes the parent-child relationship.
The new regulation closes off this possibility. This measure is not an isolated incident but part of a broader movement unfolding across the European Union in recent years. In Italy, for instance, authorities have criminalized the use of surrogacy abroad, threatening prosecution even when the procedure was carried out legally in another country. Bulgaria offers another example. In 2021, authorities refused to issue identity documents or a birth certificate for a child born through surrogacy abroad, arguing that foreign legal acts could only be recognized if they did not conflict with Bulgarian public order. Since same-sex marriages are not legally recognized in Bulgaria, the registration of two female parents was deemed unacceptable.
These restrictions carry significant implications. For many individuals, surrogacy is one of the few viable paths to biological parenthood. Banning or severely limiting access to surrogacy disproportionately affects LGBTQI+ couples, single men, and individuals with medical conditions that impede gestation. Even before these legal limitations, restrictive access to assisted reproductive technologies had already created inequalities, forcing people to travel abroad — an option only available to those with sufficient financial resources.
The unequal impacts of these restrictions are evident when examined through the lens of international human rights law. A landmark case is Artavia Murillo v. Costa Rica, in which the Inter-American Court of Human Rights struck down Costa Rica’s absolute ban on in vitro fertilization (IVF). The Court found that the ban disproportionately affected individuals based on gender, disability, and socioeconomic status. It also emphasized that such prohibitions reinforce harmful gender stereotypes related to fertility and reproduction, as they primarily target those capable of becoming pregnant and place undue restrictions on their bodies and reproductive choices. This dynamic not only limits reproductive options but deepens systemic inequality by making access to parenthood contingent on economic privilege.
The Inter-American system is not the only international human rights body to recognize the disproportionate impact of restrictions on reproductive autonomy. For instance, in Mellet v. Ireland and Whelan v. Ireland, the United Nations Human Rights Committee made it clear that Ireland’s strict constitutional ban on abortion, which criminalized the procedure in nearly every circumstance except when a woman’s life was at risk, could be discriminatory. These restrictions fail to account for the socioeconomic realities many people face, forcing them to bear the financial burden of traveling abroad for a procedure that should be accessible at home. Such a ban creates an unjust legal distinction between women in similar situations, deepening existing inequalities.
Today, by restricting access to domestic surrogacy and refusing to recognize surrogacy arrangements legally conducted abroad, countries are closing off one of the already limited options available for biological parenthood. In doing so, they entrench and exacerbate existing inequalities, particularly those based on gender, sexual orientation, and economic status — further marginalizing those who already face significant barriers to forming a family. In doing so, states fall short of their obligations under international human rights law to uphold the principles of equality and non-discrimination.
Moreover, the consequences extend to the children themselves. The Permanent Bureau of the Hague Commission on International Law has already described this scenario as an environment where children may be “marooned, stateless, and parentless.” In jurisdictions that refuse to recognize the legal parentage of children born via surrogacy abroad, these children may be left in legal limbo, unable to obtain citizenship, passports, or access to social services. In extreme cases, they may be rendered stateless or denied the right to have a legal bond with one or both intended parents.
The risk that children born through surrogacy may be denied documentation, nationality, or legal recognition of their parental ties constitutes a clear violation of international human rights law. As such, the Convention on the Rights of the Child has recognized that every child has a right to the full and harmonious development of their personality to “grow up in a family environment, in an atmosphere of happiness, love, and understanding”; it has further established that all children shall be “registered immediately after birth and shall have the right (…) to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”
Human rights bodies have emphasized that, regardless of individual state positions on surrogacy, all states have a duty to uphold the human rights of all children born through this practice without discrimination. Among their duties is ensuring that appropriate legal and regulatory frameworks are in place at the national level to protect and promote their rights. These rights, all recognized by international treaties, include the right to identity — including name, nationality, family relations, and access to information about one’s origins — as well as the right to the highest attainable standard of health.
Yet despite the clear human rights implications, states continue to justify prohibitive surrogacy policies on the grounds of public interest or child protection. The new Spanish regulation’s stated aim is to provide full legal protection for the best interests of the child by preventing what it refers to as “the international trafficking of minors.” In support of this measure, the government cited a 2024 ruling from the Spanish Supreme Court, which held that the assessment of a child’s best interests must be carried out in light of the values embraced by society — those reflected not only in statutory law, but also in the principles underpinning national legislation and international conventions on civil status and children’s rights.In this context, surrogacy was deemed contrary to public order, as it was seen to violate fundamental rights and “objectify both the gestational mother and the child.”
However, a prohibitive regulatory approach that disregards the lived experiences of hundreds of families and children overlooks both the extreme vulnerability many children may face and the practical implications of such a ban. While Spanish legislation invokes the protection of gestational carriers and the best interests of the child, it defaults to outright prohibition without considering less restrictive, rights-respecting alternatives. At a minimum, regulatory frameworks could be designed to establish clear eligibility and accountability requirements for intended parents. For instance, regulations could require that intended parents be adults with full legal capacity and no prior convictions for crimes against children. Additionally, states could require intended parents to provide free, written, and informed consent to assume legal parentage upon the child’s birth, ensuring clarity and stability in the child’s legal status from the outset.
If the true concern is the protection of gestational carriers or the risk of “objectification,” then the government could instead implement appropriate safeguards and public policies that focus on ensuring informed consent, allowing both gestational carriers and intended parents to exercise their reproductive autonomy and procreative will. A restrictive framework leaves no room for individuals to freely decide whether to become parents, undermining the very principles of autonomy and dignity it claims to defend.
In short, while the stated aim is to protect vulnerable individuals, Spain’s new regulation and similar prohibitive surrogacy policies risk doing the opposite: exposing children and families to legal uncertainty, social exclusion, and systemic discrimination. A rights-based regulatory approach is not just possible — it is also required under international human rights law to safeguard the interests of all parties involved, especially the children.
DISCLAIMER: The views and opinions expressed in this piece are those of the authors and do not reflect the views of the O’Neill Institute.
