When a family created through surrogacy abroad returns to their home country after the birth of the child, the genetic parent(s) are usually recognised as legal parents by default. However, any parent without a genetic link to the child needs to have their parenting rights legally recognised as soon as possible.
This protects the family in case of the genetic parent's absence, death, parental separation, or simple everyday activities the non-genetic parent might need to undertake – such as taking the child to the doctor's or picking them up from school.
In most European jurisdictions, foreign surrogacy arrangements receive varying degrees of recognition – except for Italy, where commissioning surrogacy (including abroad) is punishable by imprisonment and fines (see BioNews 1289). In Spain, following the introduction of gay marriage and assisted reproduction laws (Ley 13/2005 and Ley 14/2006), surrogacy is banned within Spanish territory, but families created by Spanish citizens abroad have historically been recognised.
Thanks to the special directive introduced in 2010 – (October 5, 2010 Instruction from the Directorate General for Registries and Notaries) known as 'Instrucción Zerolo' after the politician who negotiated it within the socialist government at the time – many families created by Spanish citizens through surrogacy abroad were automatically recognised as such in Spain. Children born through surrogacy abroad were registered in Spain's Civil Register based on foreign judicial resolutions confirming the surrogate's consent validity, and the absence of coercion or child trafficking claims.
Thanks to this Instruction, many Spanish families created via surrogacy – particularly, but not exclusively, in the USA and Canada – were recognised in Spain.
The 2010 Instruction referred to children born in specific jurisdictions, where local judicial decisions about surrogacy cases were considered valid by the Spanish state. This created a double standard, whereby surrogacy arrangements carried out in other jurisdictions – such as Mexico, Colombia, Ukraine or elsewhere – were never automatically recognised in Spain and always required the non-genetic intended parent to require intra-family adoption in Spain.
However, the April 28, 2025 Instruction from Spain's Directorate General of Security, Legal Certainty, and Public Faith, revoked the October 5, 2010 Instruction, cancelling the possibility of automatic recognition for Spanish families created through surrogacy abroad.
Since then, only genetic parents have been recognised in Spain, while non-genetic parents must apply to adopt their surrogacy-born child. This process is difficult and lengthy, requiring a parental suitability certificate – obtained via psychological and social assessments confirming the prospective parent's emotional maturity, motivation, financial stability, and ability to meet a child's needs – as a prerequisite.
According to Antonia Durán Ayago, professor of private international law at the University of Salamanca, the 2025 Instruction violates Spanish citizens' right to the civil register. During the 'Surrogacy in Spain: Rollback of Rights, Silence, and Children Without Names' seminar organised by REDLIBRE (the Latin Network of Researchers in Reproductive Biotechnologies) in September 2025 – she argued that the new Instruction should be taken to judicial tribunals to be cancelled, as it violates the child's fundamental right to Spanish citizenship.
In her legal analysis of the 2025 Instruction, Professor Durán Ayago writes, 'We are faced with an Instruction that is clearly detrimental to the interests of children born abroad through surrogacy to Spanish parents … This is a legal absurdity that ignores our system of private international law and therefore violates our legal system. It should be repealed as soon as possible.'
Yet for now, 'following the withdrawal of the 2010 Instruction, all families are now referred to intra-family adoption processes,' says Ramon Antonijoan Pintor, the deputy president of the FLG, the LGBTI Families Association of Catalonia (Associació de Famílies LGTBI de Catalunya) in an interview conducted specifically for this BioNews commentary.
He continues: 'This produces further barriers, delays, and judicial insecurity for children whose filiation has already been legally recognised in other countries. While it is not granted, there may be issues that may leave the families unprotected – such as one of the parents' death or separation'.
What is more, as deputy president of the LGBTI Families Association of Catalonia, Ramon Antonijoan Pintor explains, even though data show that surrogacy is mostly used by heterosexual parents, intra-family adoption tends to be quicker in their case 'as the system starts from the assumption they are already a "normalised" family: their filiation is not questioned, the child's origin or the parenting project are not investigated, and reports tend to be almost automatic'.
By contrast, the situation is very different in LGBTI families created through surrogacy: their family model is scrutinised, the child's origin is analysed, and further evidence and judicial proceedings are required – which delays the recognition and makes it more difficult.
As Antonijoan Pintor observes, surrogacy has become an increasingly ideological issue in Spain. He says, ‘Several left-leaning parties in the current governing coalition – notably PSOE and Podemos – have recently framed surrogacy as the exploitation of women surrogates by wealthy gay men, starkly omitting heterosexual intended mothers and the surrogates' capacity for self-determination.' This aligns with global trends, including the UN Special Rapporteur's recent report on surrogacy – severely criticised by scholars for omitting key research and stakeholders' voices (see BioNews 1316).
According to Antonijoan Pintor, a key challenge today is that most surrogacy activists are gay couples, who represent only a minority of users. Yet in heterosexual couples using surrogacy, he argues, it is far easier to render surrogacy invisible and assume the parents raising the child are biological. He recommends making the women involved more visible – heterosexual intended mothers, surrogates, and egg donors – to challenge the dominant narrative of surrogacy as an exploitative practice commissioned by men.
'The 2010 Instruction may have generated two velocities, of richer countries and poorer ones, increasing suspicion of those countries that are often racialised,' says Lucas Platero Méndez, professor of social psychology at Rey Juan Carlos University in Madrid, in an interview conducted specifically for this BioNews commentary.
In either case, however, says Professor Platero, 'LGBTQI families are not really framed as "true families" '. He explains: 'This is strange as obviously, if two people are married and have a child through surrogacy, how come the child is considered to be of one parent only and not of the other? As if it was a worse-quality marriage. Another case in point concerns same-sex female couples using reciprocal IVF, where clinic proof for filiation has often been required from the non-gestating mother for the family to be recognised as such in Spain.'
Surrogacy remains complex and inaccessible to many gay men and other intended parents also in the UK. As Natalie Gamble – the founder and director of NGA Law and founder of Brilliant Beginnings, which works with overseas surrogacy cases – argued at the recent PET event The Fertility Landscape for LGBTQ+ Families: 'ensuring that LGBTQ families have proper legal recognition is entirely about what is best for the children; they are entitled to a secure legal connection with their parents' – understood as those who, at conception, intend to be the child's legal parents.
She continued: 'There are ethical risks in surrogacy, but we need to engage with those constructively to address them. This is a sensitive issue which needs thoughtful, practical reform, and it's really important that we don't allow the debate to descend into simplistic cultural wars.'