La protección jurídico-laboral de maternidad ante la "gestación subrogada" y tutela integral de los hijos: antecedentes, estado de la cuestión y perspectivas

Abstract

In the eyes of the Spanish legal system, "surrogate motherhood" (understood as a situation in which a woman becomes pregnant using assisted techniques, taking on the obligation to hand over, for a payment, the newborn to one or more contracting parties, who may be individual persons, unmarried couples or homosexual or heterosexual spouses, who in turn may or may not have contributed their gametes) entails the nullity of the contract signed. Despite the clarity of these terms, the problem which has arisen is the filiation of children born to Spanish parents in countries which do admit this figure and, as a result, whether the determination of filiation entails the possibility of enjoying the economic benefits of maternity and paternity for the intentional parents. This question has triggered a whole set of administrative and legal doctrines plagued by severe fluctuations, ultimately deciding on a response in favour of protective coverage in the child's interest.