Surrogacy. Legal and legislative consequences of European Directive 2024/1712 of the European Parliament and of the Council

Abstract

Surrogacy, commonly known as renting a womb, is not a new practice, however, and despite its ethical conflicts and its legal prohibition in Spain, it is on the rise. According to data provided by the Ministry of Foreign Affairs, European Union and Cooperation from 2010 to July 2023, Spain received 3,546 applications to register babies born through surrogacy, although this figure could be higher. Faced with this situation, the European Union, in the absence of a common legal position on this practice, has determined, through the Council and the European Parliament, to explicitly consider the exploitation of surrogacy as human trafficking when women are coerced or deceived into acting as surrogate mothers. This opens a legal discussion regarding what rights are at stake and what should be the legal and, where appropriate, criminal regulation. In this article, we will try to address the action that is being sanctioned, without going into the rest of the elements of the criminal type that would require a more detailed study. In addition, we will highlight the policy of accomplished facts that validate this practice by entering into conflict with the interest of the minor and that invites us to reflect on the current situation.