On July 7, 2026, the Community[1] of Madrid enacted Law 5/2026, commonly referred to as the “Law on the Unborn Child.” The law allows an embryo or fetus to be treated as if already born and as a member of the family unit when doing so expands the family’s access to certain benefits and assistance afforded by Madrid’s local government. The Madrid government has characterized Law 5/2026 as a family-support policy aimed at encouraging childbirth in the face of Spain’s declining birthrate. However, it relies on an ideology that has been used elsewhere to expand the scope of legal rights afforded prenatal life and restrict access to abortion and other forms of reproductive healthcare. Moreover, it does little to fundamentally alter the material and structural conditions that are currently informing people’s decision-making around having children.
Pronatalism in Law 5/2026
Law 5/2026 provides that a “conceived but unborn child” may be treated as the equivalent to a child already born for purposes of accessing benefits and rights associated with having children. Applicants must submit a medical certificate confirming the pregnancy, gestational age, and expected date of delivery, as well as identifying the physician. Once the pregnancy is certified, the embryo or fetus may be counted when determining eligibility for scholarships, social assistance, housing subsidies, and large-family status. Most benefits do not require a minimum gestational age. Economic assistance and recognition as a large family, however, generally require the pregnancy to have reached 14 weeks. In multiple pregnancies, each fetus is counted separately. While the law only applies to the Community of Madrid, Alberto Núñez Feijóo – leader of Spain’s People’s Party – has said he would pursue similar legislation at the national level, if he were to become Prime Minister.
The law is part of Madrid’s explicitly “pronatalist” strategy on maternity, paternity, birth rates, and work-family reconciliation, which seeks to increase birth rates, support and protect motherhood and fatherhood, and facilitate work-life balance. Pronatalist policies like Madrid’s are on the rise in many countries, whether driven by declining fertility rates and related economic concerns, nationalism, or traditional family values. Other examples of pronatalist policies include direct money transfers, tax incentives, parental leave, and other forms of family support. Some pronatalist policies are rooted in racism, sexism, and ableism, particularly when they are focused on increasing birth rates for certain groups of people.
Prenatal Personhood in Law 5/2026
Pronatalism, however, is not the only ideology advanced by Madrid’s new law. Regional officials have characterized the law as protective of prenatal life’s rights. After its approval, the President of the Community of Madrid stated that prenatal life is a rights-bearing person “from the very first minute” of conception and celebrated Madrid as the first region in Spain to adopt policies recognizing such rights.
Recognizing embryos or fetuses as legal persons does more than enhance the legal rights and protections afforded to prenatal life. It introduces a potentially independent rights holder within pregnancy and can place prenatal interests in conflict with the rights of the pregnant person (including rights to health, medical decision-making, reproductive autonomy, and family formation). When the interests of embryos or fetuses are determined to supersede the rights of the pregnant or postpartum person, women, girls, and others are subjected to enhanced surveillance and punishment for actions deemed harmful to prenatal life. Legal scholars have argued that establishing legal personhood for a prenatal life is a central political and legal strategy of the anti-abortion movement.
Courts around the world have therefore generally distinguished between protecting prenatal life and either granting embryos or fetuses broad legal rights or recognizing them as legal persons. Spain’s own Constitutional Court, in a judgment recognizing the constitutional permissibility of specified grounds for the partial decriminalization of abortion, held that while prenatal life is a constitutionally-protected interest, it is not “the holder of the right to life.” The Court also warned that unconditional protection of prenatal life could afford it greater protection than persons already born, since no person may ordinarily require another to sacrifice their life, health, or bodily integrity for their survival.
Other high courts have expressed concerns about the consequences of treating prenatal life as an independent rights holder. High courts in countries like Slovakia and South Africa have stressed that granting prenatal life an enforceable right to life could provide a legal basis for sweeping restrictions on abortion. Mexico’s Supreme Court has likewise warned that framing the protection of prenatal life as antagonistic to women’s rights “implies the idea that a woman’s body is a space for debate or a publicly available good,” while reinforcing the notion that women seek to “destroy” the fetus and that the State and the community are its legitimate protectors.
Many of these courts, particularly in Latin America, cite international human rights law in the process. The drafting histories of various international human rights treaties, for example, clearly establish that human rights begin at birth. In Artavia Murillo v. Costa Rica, similarly, the Inter-American Court of Human Rights held that an embryo is not a “person” under Article 4.1 of the American Convention.
Reproductive Justice in Law 5/2026?
The Community of Madrid missed an opportunity to ground Law 5/2026 in a reproductive justice framework, rather than pronatalist and prenatal personhood ideologies. Reproductive justice asks not only whether individuals are formally free to make reproductive decisions, but also whether they have the social, economic, and political conditions necessary to have children, not have children, and raise families in safety and dignity.
International human rights law recognizes many of the conditions necessary to exercise those choices. The International Covenant on Economic, Social and Cultural Rights (ICESCR) protects, among others, the rights to health, social security, an adequate standard of living, including housing, and to the protection and assistance of the family. Other international treaties and agreements (e.g. the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW] and the ICPD Programme of Action) likewise recognize the right of all individuals and couples to decide freely and responsibly the number, spacing, and timing of their children, and to have the means to do so.
Available evidence suggests that material and structural conditions, rather than the legal status of prenatal life, are among the principal factors constraining people’s ability to have the number of children they want. UNFPA’s 2025 State of World Population report describes the fertility crisis as a gap between the number of children people want versus the number they are able to have. Across fourteen countries, financial limitations, job insecurity, housing costs, inadequate childcare, and unequal caregiving responsibilities constituted major barriers to having children. Health concerns played an important role, particularly infertility and insufficient access to fertility and pregnancy-related care. Other factors included uncertainty about the future (e.g., armed conflict, pandemics, climate change, and environmental degradation) and relationship dynamics (e.g., absence of a suitable partner and the unequal distribution of housework and childcare).
High courts in various countries have pushed back against efforts to advance prenatal personhood by stressing how prenatal life can instead be protected through policies aimed at supporting parents and families during pregnancy and into early childhood. Mexico’s Supreme Court has stressed that the State may protect prenatal life through measures that are both more effective and less restrictive of rights than treating the fetus as an independent rights holder, such as by ensuring access to prenatal care, enabling parents to reconcile caregiving responsibilities with employment and education, and guaranteeing equal access to educational opportunities for children.
Law 5/2026 does little to address the material and structural conditions that are currently informing people’s decision-making around having children. It does not expand access to childcare, improve job security, redistribute unpaid care work, or reduce barriers to reproductive health services. Instead, it shifts the legal basis for support away from pregnant people and families and towards prenatal life. The shift poses a direct threat to people seeking essential reproductive health services, as broad legal rights or full personhood for prenatal life threatens the legality of contraception, abortion, emergency obstetric care, and assisted reproductive technologies.
This Expert Column builds off of the O’Neill Institute, State Innovation Exchange, and Legal Voice’s “Beyond Borders: Bringing Abortion Law and Policy Experiences Around the World to the United States” report series. For those interested in learning more about how the United States compares to the rest of the world in the context of prenatal personhood, please read the “Rejection of Prenatal Personhood” report.
[1] Spain is divided into 17 regions or “autonomous communities,” which are afforded certain powers and governed by their respective regional governments.
