La maternidad subrogada en el constitucionalismo europeodificultades para su anclaje legal ante una realidad social en constante evolución

Abstract

Article 10 of Law 14/2006, of May 26, on techniques of assisted human reproduction, prohibits in our country gestation by substitution and determines the filiation for childbirth. However, in the Spanish social reality, surrogate motherhood is topical due to the increasing use of this route abroad and the inscriptions in the Spanish Civil Registry of children born in third countries through this technique. This concurrence determines that values, rights and constitutional principles come into play, insofar as there are personality rights enshrined in the Magna Carta and international law, when these contracts are formalized abroad. This contribution faces the challenge of analyzing the regulatory proposals of this figure in our legal system, as well as the crossroads that supposes the existence of a norm with legal rank that is affected by international jurisprudence completely opposed to the one that is defended from superior jurisdictional positions and binding at the national level. Likewise, prospectively, in order to guarantee respect for human rights, the guarantees that should prevail in its regulation will be determined.