Surrogacy in Spain: Vindication of the Mater Semper Certa Est Rule

Abstract

Civil law jurisdictions have more than others effectively resisted the commodification of gestation capacities, relying on the old Roman aphorism mater semper certa est (‘it is always certain who the mother is’). Faced with the complexities of stratified reproduction [Anagnost, A., 2004. Maternal labor in transnational circuits. In: J. S. Taylor, L. L. Layne, and D. F. Wozniak, eds. Consuming motherhood. New Brunswick, NJ: Rutgers University Press, 139–167], the mater semper certa est rule allows for the birth mother to be considered as the legal mother. Thus, the gestational model of motherhood, that rules in countries such as Spain, France, and Italy, acts as a deterrent against prospective parents’ entering into a surrogacy contract, both domestically as well as at the international level.

This paper offers a vindication of the Roman aphorism as a fair principle to protect birth mothers and their children from the abuses of reproductive market forces.

KEYWORDS:

• surrogacy
• Spanish Assisted Reproductive Technologies Act
• mater semper certa est
• egg donor
• legal parenthood

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes on contributor

Itziar Alkorta, is Civil Law Professor at the University of the Basque Country (UPV/EHU). Dr Alkorta’s research field covers protection of medical data, regulation of reproductive technologies, tissue donation, and personalized medicine. She is a member of the Consolidated Research Group on Personhood, Patrimony and Family, with a vast experience on interdisciplinary research projects funded by European and Spanish agencies. She has been Invited Professor at the Hastings Center of Bioethics, New York (2001, 2002), Bioethics Center of the Faculty of Medicine, University of Pennsylvania (2006), CERFAP, Université de Bordeaux (2016). She served as Secretary General of the Society for Basque Studies from 2004 to 2009. Vice Rector of Quality and Educational Innovation of the University of the Basque Country (2009–2012), where she was in charge of the European Higher Education Integration Area in the field of educational innovation. Vice Minister of University and Research of the Basque Government (2012–2015). She is Director of the Summer Courses of the University of the Basque Country. She is a correspondent member of the Basque Academy for Sciences, Arts & Humanities.

Notes

1 Translation by the author.

2 Translation by the author.

Additional information

Funding

This work was supported by the Persona, familia y patrimonio, IP Jacinto Gil Rodriguez [GIC18 A IT1239-19] and Eusko Jaurlaritza, Persona, familia y patrimonio (Grupo consolidado del sistema universitario vasco – Tipo A) [GIC18 A IT1239-19].