Registration of children born through surrogacy in the Civil Registry: The key points of the new Instruction of April 28, 2025
In recent years, many Spanish families have turned to surrogacy to fulfill their desire for parenthood and to start a family.
According to some reports During the period between 2010 and 2023, 3.785 applications for registration of parentage of minors born in the context of surrogacy agreements were made in the consular Civil Registries, being accepted around the 66% of the requested registrationsThe main countries to which applications are sent are the United States (45,42% of applications) and Ukraine (34,29%).
Until now, the Instructions of October 5, 2010 and February 18, 2019 of the former Directorate General of Registries and Notaries allowed the registration of the birth of minors in the Spanish Civil Registry by means of a judicial resolution issued by a competent court that allowed to guarantee the full legal capacity and capacity to act of the pregnant woman, the effectiveness of the consent given and the full respect for the requirements demanded by the country of origin.
However, the new Instruction of April 28, 2025 from the General Directorate of Legal Security and Public Faith It considerably tightens the requirements for carrying out such registration, only allowing the determination of parentage through the ordinary means provided for by law in Spain.: Biological parentage with respect to one of the intended parents and parentage by adoption.
What does the new Instruction of April 28, 2025 entail?
The aforementioned Instruction adapts the DGSJFP's criteria to the recent STC 28/2024 of February 27 and the STS 1626/2024 of December 4, which determined that parentage can only be determined in Spain by the means admitted in the Civil Code, and that a parentage derived from surrogacy is inadmissible because it is contrary to Spanish law and public order.
In particular, the STS 1626/2024 It establishes the following, after reiterating that surrogacy is, by its very nature, contrary to public order:
"The protection to be granted (…) must be based on the provisions of the laws and conventions applicable in Spain and the jurisprudence that interprets and applies them, taking into consideration their current situation, establishing the parentage relationship through the determination of biological parentage paternal, the adoption or allowing the integration of minors into a family unit through foster care".
On this basis, the new criterion of the DGSJFP represents a substantial change from the previous situation, which can be summarized in two fundamental ideas:
- Elimination of the specific registration process for surrogacy abroad: The new Instruction renders the previous scheme ineffective, in which registration in the Spanish Civil Registry was admitted, with certain requirements, based primarily on judicial resolutions from the foreign country that attributed parentage to the intended parents.
- The determination of parentage in the Civil Registry will be carried out in accordance with the ordinary means provided for in Spanish legislation: In Spanish law, in general, maternal filiation is determined by childbirth, so that the determination of the filiation of the commissioning mother is only allowed through the adoption procedure, always taking into account the best interests of the child.
How does the situation change after the new criteria of the DGSJFP?
Currently, the most frequent scenario continues to be the following: Both parents, Spanish citizens, of the same or different sex, go to a US state (currently almost half) whose legislation permits this practice, so that, After the birth, a court order is issued by the American judicial authority recognizing the commissioning parents as the child's parents.
Based on the above criteria, Many families went to the Consular Civil Registries with this documentation to request registration in the Civil Registry, in most cases it is primarily a documentary procedure.
However, following the 2025 Instruction, the criteria changed:
- The registration of minors by means of a foreign registration certificate is expressly prohibited., the simple declaration accompanied by medical certification relating to the birth of the minor or a final judgment of the judicial authorities of the corresponding country.
- Parentage may only be registered in the Registry through the ordinary channels of the Spanish legal system, primarily.
- Biological parentagewith respect to the biological parent, if any.
- La adoption by the other parent.
The importance of consulting before starting surrogacy
International surrogacy It has become a particularly sensitive and complex legal field, subject to constant changes. There is already a strong tension between Spanish internal public order, private international law and the best interests of the child.
Following the Instruction of April 28, 2025, the position of the Spanish Civil Registry is clearly more restrictive and opposed to this practice, which forces families to plan the legal aspect of their parental project with much more care and attention.
In this context, It is highly recommended that those who have resorted to surrogacy have expert legal advice in international family law from the outset., capable of:
- Design an appropriate strategy for registration in the Spanish Civil Registry.
- Anticipate potential problems regarding parentage.
- To accompany in any legal actions that may be necessary.
RRYP Global, international family law attorneys.
