On February 13, 2019, the Spanish Consulate in Ukraine denied, for the first time, the registration of children born through surrogacy in that country. The decision cites the Instruction of the Directorate General of the Registry and Notary Office of October 5, 2010, which states that, in cases of children born through this assisted reproduction technique, a court order recognizing the parentage of the intended parents is essential for their registration in Spain.
This Instruction was issued to provide a solution regarding the registration of children born through surrogacy, but it was designed to address cases in the USA and was not intended for cases that might occur in countries where parentage is recorded, as in Spain and most countries in the world, on a birth certificate.
Currently, the countries where it is possible to obtain this type of court order allowing for registration without any problems are the USA, Greece, and Canada. The first Russian rulings are beginning to arrive (we will publish an article about Russia soon, as it could become the best alternative to Ukraine if the situation remains the same). Obviously, there are countries where it is impossible to obtain this type of order, and in the opinion of this writer, minors are discriminated against because they are treated differently depending on the country of birth. That is, they are minors born using the same assisted reproduction technique, but some will have the right to registration while others will not.
How to recognize parentage in Spain if the Consulate denies registration.
At Intraius, we have no doubts about this. In fact, as pioneers in surrogacy in Russia, we have had the opportunity to handle similar cases, even for parents who were unable to provide genetic material. The Spanish Supreme Court, in its rulings on surrogacy, clearly indicates the legal mechanisms for establishing the child's parentage (in Spain) and repeatedly affirms that Spain, unlike other European Union countries, has legal mechanisms in its legal system to recognize the parentage of the intended parents. Furthermore, contrary to the actions of the state administration, it clearly states that in these cases, the best interests of the child must be protected by integrating them into the family through the recognition of the intended parents' parentage.
At Intraius, we have advised hundreds of parents in cases of parentage recognition in Spain and have obtained favorable rulings directly recognizing the parentage of both commissioning parents. However, if the court, in the initial proceedings, chooses to recognize the genetic father and the biological mother, the Spanish commissioning mother's parentage would be recognized through adoption.
How to leave Ukraine
At this time, the recognition of parentage in Spain is not the main concern; rather, it is the departure from Ukraine of the many couples who are there and who, until now, saw that country as a possible destination to fulfill their dream of becoming parents.
At Intraius, we have already assured our clients – and all other interested parties – that our team of expert international lawyers anticipated the potential emergence of this situation long ago and that we are therefore well prepared to help them overcome this difficulty as well.
If the Spanish Consulate still does not provide a solution, whether with a safe-conduct pass or another alternative, then the only possibility for leaving is to obtain a Ukrainian passport that allows the minors to return to Spain with their parents.
Ukrainian law allows, in certain cases, for the recognition of Ukrainian citizenship for children born in Ukraine. Specifically, Ukraine grants citizenship to a child when they cannot obtain it through their parents; that is, if there is a risk or it is evident that the child could become stateless, then the Ukrainian state grants them citizenship. After obtaining citizenship and a Ukrainian passport, the parents and their babies could travel to Spain and then legally establish parentage in their country of residence.
Given that in this case the Consulate is officially denying the registration applications, it is advisable to start the legal proceedings in Spain as soon as possible.
Peace of mind for Intraius customers
At Intraius, we want to clarify that our clients are always clear about the legal solutions for leaving the child's country of birth, as well as those related to the recognition of parentage in Spain.
We are initiating the first procedures with the Ukrainian administration to obtain the relevant passport and, in parallel, we will initiate the corresponding legal proceedings in Spain to protect the rights of our clients and, above all, the minors.
Franco Antonio Zenna
