The Supreme Court and maternity benefits in surrogacy: when the law looks at the child, not the contract. Part 1

In Spain, surrogacy remains a controversial topic, both morally and legally. The current legal framework is clear: surrogacy contracts are null and void. This is established in Article 10 of the Law on Assisted Human Reproduction Techniques, and has been repeatedly confirmed by the Supreme Court.

For civil courts, these agreements violate the dignity of the surrogate mother and call into question the best interests of the child . Therefore, Spain does not automatically register children born through surrogacy abroad, nor does it recognize the resolutions that validate such contracts.

However, the story changes when children’s social rights come into play.

Because beyond the ethical debate surrounding the practice, the system cannot ignore one reality: there are children born through surrogacy who need protection.

Supreme Court’s doctrine on Social Security comes into play , which, without legitimizing surrogacy, has opened a door—small but significant—to protect minors born under these circumstances.

A decision that changed the focus

The turning point began in 2016, when the Supreme Court’s Social Chamber ruled on two landmark cases. In both, Spanish parents had resorted to surrogacy abroad and were claiming maternity benefits from Social Security.

• STS of October 25, 2016 (RCUD 3818/2015)
  The case originated in California. A Spanish father returned with his child born through surrogacy and applied for paternity benefits. Until then, the rule had been applied literally: if there is no birth, there is no parenthood. The Supreme Court decided to break with that pattern. It recognized the father’s right to enjoy the benefit, interpreting the law’s purpose not to reward biology, but to protect the child . It was a groundbreaking ruling.

• STS of November 16, 2016 (RCUD 3146/2014)
  Barely three weeks later, the Court ruled again. And this time it was more forceful. It stated that denying the benefit would leave the child in a situation of neglect , contrary to Articles 14 and 39.2 of the Constitution, which protect equality and the family. The message was clear: the rights of the child must prevail over the manner in which they came into the world.

The courts that paved the way

Even before the Supreme Court ruled, some lower courts had already shown sensitivity to this legal dilemma.

• In 2014 , the High Court of Justice of Madrid granted maternity benefits to a father following a surrogacy process in India.
• In 2015 , the Basque Country’s High Court of Justice did the same with paternity benefits.
• And in 2019 , the 11th Social Court of Bilbao consolidated this line with a ruling that reinforced the idea that the ultimate purpose of benefits is the well-being of the minor.

These resolutions were like the first drops before the rain: they marked a change in mentality that the Supreme Court eventually turned into doctrine.

A change of perspective: from mother to child

The 2016 rulings did not endorse surrogacy, but rather tacit recognition of something the system cannot ignore: the children are already here , and they deserve protection.

The Supreme Court didn’t change the law; it changed the perspective. Where it was previously seen as a violation of public order, it is now seen as an issue of social protection and children’s rights.