Void contracts, living rights: the Supreme Court’s social doctrine on surrogacy

In the civil sphere, the Supreme Court leaves no room for doubt: surrogacy contracts continue to be contrary to Spanish law. The most recent rulings, such as Supreme Court Judgment 5879/2024 and Supreme Court Judgment 496/2025 , insist that the practice violates the dignity of women and the best interests of children.

From this perspective, foreign rulings recognizing the commissioning parents cannot have automatic effect in Spain.

And yet, in the social sphere, the logic is different.

The same court that declares the contract void recognizes the right to maternity or paternity benefits . An apparent paradox that, in reality, reveals a fundamental idea: the State cannot punish a child for the way in which it was brought into the world.

The letter and spirit of the law

In the STS of October 25, 2016 , the Court stated:

“The regulation is not so narrow as to prevent its interpretation in the sense most favorable to the constitutional objectives of child protection.”
(Judicial Branch, ECLI:ES:TS:2016:5375)

That nuance is key. The Supreme Court interprets labor and social security regulations with a finalistic approach : the goal is not to define who the mother is, but to protect the newborn .

In the STS of November 16, 2016 , the Court went further:

“Not granting maternity benefits would constitute discrimination… in violation of Articles 14 and 39.2 of the Constitution.”

Here, the Supreme Court appeals directly to equality before the law and the State’s duty to guarantee the comprehensive protection of families and children.

The Spanish paradox

This duality—rejecting the contract, but recognizing the minor’s rights—reflects the tension between civil and social law.

On the civil level, the priority is to avoid the commodification of the woman’s body.

On the social level, the priority is not to punish the minor for a decision that is beyond their control.

The result is a hybrid, but profoundly humane, doctrine. And although some jurists fear that this interpretation could open loopholes for de facto validating surrogacy, the truth is that the Court has been very clear: it is not about legitimizing, but about protecting.

A jurisprudence that could mark the future

In practice, the 2016 rulings are not a mere anecdote. They have inspired subsequent decisions and serve as a reference for judges and lawyers today.

What emerges from them is a simple but enormously important principle:

“Children born through surrogacy cannot be left in a limbo of rights.”

This principle, beyond ideological debates, points to an essential value: the protection of minors as the axis of the legal system.

Spain, like other European countries, continues to seek a balance between ethics, law, and social reality. But while the debate continues, the Supreme Court has made one message clear: no child should pay the price for a moral or political argument.