The surrogate motherhood from a legal perspective. Some reflections on the conflict between desires and rights

Abstract

Abstract:
The surrogate motherhood is generating in the last years an intense political, juridical and moral debate (It is even possible that in the present legislature a bill on the subject will be presented), a perverse debate that uses
the autonomy of women to maintain opposing positions. This paper tries to analyze the issue from the perspective of legal feminism and taking into account the gender perspective. At the moment, Spanish law considers this contract as null (art. 10 of the Law 14/2006 of assisted human reproduction; case law of Supreme Court), but the inscription of minors’ filiations conceived abroad by this technology has questioned whether it is convenient its regulation to avoid a fraud of law. This question has been analized in several judgments of the European Court of Human Rights. These judgements have been based on the protection of the best interests of the child. This paper proposes a regulation that guarantees the rights of pregnant women and which prevent the creation of a «babies market» and the instrumentalization of the most vulnerable women. This requires taking into account the gender perspective to weigh rights in conflict. The result will be a contract of an altruistic nature and that it has the appropriate judicial guarantees. In any case, we musn`t forget that we are dealing with an issue that should be subject to international regulation to avoid the promotion of reproductive tourism. However, it would be desirable to facilitate access to paternity and motherhood through adoption and not to open the way of a technique that always carries the risk of influencing the poverty feminization, of the instrumentalization of the mother Pregnant as the son or the daughter and the creation of a market. Finally, this reflection will allow us to question whether there is a right to procreation or we can only talk about a desire to be father or mother. The conclusions will allow us to reflect on how neoliberal ethics is influencing the definition of human rights. Additionally, this paper try to show the sense of the guarantee of constitutional values as the free
personality development (art. 10.1 CE), the equality and non-discrimination (art. 14 CE) and the family protection (art. 39 CE). All in a context of transformation of the traditional family law base on two principles: the primacy of the will and the overcoming of heteronomativity.