Nuestra compañera, Victoria López Barrio, nos indica los supuestos necesarios para desvirtuar la presunción de la voluntad común favorable a la ganancialidad, en la que no basta con probar que el precio pagado es privativo.
Situación de los padres de ciudadanos españoles menores de edad que viven a sus expensas y repercusión de la reciente Sentencia del Tribunal Supremo, 702/2019. Mariano Calleja Estellés, experto en Derecho de Extranjería, nos aclara la situación actual, en este artículo.
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In applications to amend foreign judgments, there have traditionally been two problems: The first makes reference to international jurisdiction, in other words, what Judge can amend a judgment handed down by a foreign court with regard to minors or child support.
We already made reference to this issue in our article from 13 September 2017, clarifying that the same international jurisdiction rules that apply to minors and child support must apply to any amendment relating to them, pointing out the inadaptation of Article 775 of the Civil Procedure Act to international matters.
However, in the amendment of foreign judgments, there is also a second issue to be considered: whether or not there is the need to obtain the exequatur relating to the foreign judgment first in order to amend it.
It seems obvious that prolonging an amendment of measures (minors or child support) by requiring the exequatur of a resolution in order to amend it does not make much sense.
While this issue has long been resolved in the area of EU regulations (which have always provided for incidental recognition), with the amendment of non-EU judgments there has been case-law of all sorts, sometimes requesting the exequatur relating to the foreign judgment in order to amend it, and sometimes not.
Law 29/2015 which entered into force on 30 August 2015 on international legal cooperation in civil matters (known as LCJIC in Spanish) resolved this issue by introducing incidental recognition in its Article 44: “When the recognition of a foreign resolution is considered in an incidental manner in legal proceedings, the judge hearing the case shall rule in relation to said recognition within the legal proceedings in question according to the provisions of the procedural laws. The effectiveness of the incidental recognition shall be limited to what is resolved in the main proceedings and shall not prevent the application of an exequatur in relation to the foreign resolution”.
The LCJIC clears up all doubts regarding the validity of this incidental recognition to amend foreign judgments in its Article 45, pointing out that a foreign resolution may be amended by Spanish jurisdictional bodies provided that it has already obtained the relevant recognition through the main or incidental channel.
The judgment of the Provincial Court (AP) of Zaragoza of 28 November 2017 addresses this issue. The Court of First Instance indicates that it does not have jurisdiction to amend the measures as the judgment was handed down by a foreign judge (Algeria) and that, moreover, it cannot amend it until it has been subject to the exequatur procedure.
The Provincial Court of Zaragoza clarifies that both legal arguments are incorrect and that there is no need for an exequatur, rather the recognition required to amend a judgment may be that of an incidental nature.
Taking into account how long exequatur proceedings can go on for in our Courts (especially due to the notifications to non-EU states), these articles incorporated by the LCJIC will allow amendments to be made to judgments within a reasonable period, reinforcing the right to a process without any undue delays, particularly in these issues where speed is of the essence.
We all have expressions like these in mind: “You’ve only got one mother” and “mater seper certa est” [the mother is always certain], but with recent advances in assisted reproduction, these aphorisms are no longer so true.
In fact, according to Spanish law, maternity is determined by gestation, so the gestating mother is the mother, but what happens when this woman and the biological mother are not the same person?
How the question is posed in Spain
In the case of a couple composed of two women, where one of them gestates the embryo from the egg of the other and sperm from a donor, which of them would be the mother? We can’t deny the status of mother to the one contributing the DNA, the one contributing the egg.
This consideration was taken into account in Article 7.3 of the Assisted Reproduction Act, which allows the filiation of two women in these circumstances:
“When a woman is married to, and not legally or in fact separated from, another women, the latter may declare, in accordance with the provisions of the Civil Registry Act, that she agrees for a determination in her favour of the filiation in regard to the child born from her spouse.”
Therefore, two women may be biological mothers, and therefore both may be recognized as such.
It is not the case here, as it is with men, that one of them may adopt the child of the other and hence become a part by adoption, but rather, in the case of two women, it is a true filiation.
But what happens to the father?
So far no problems have arisen from these filiations since normally the interested parties go to a sperm bank and use sperm from an anonymous donor, but what if the donor wasn’t anonymous?
And what if he wanted to be the father and the mothers consented to such a determination of filiation?
In this case, all of them have a right to paternity: the gestating mother by law and the biological parents due to their DNA. Would it be possible to register three people with the Civil Registry as the minor’s parents?
At the moment, such a registration appears to be nearly impossible in Spain, but it also seemed to be impossible a few years ago for a transsexual to marry someone of their same biological sex or for people of the same sex to get married.
If the matter arose, it would be difficult to find sufficient arguments to deny the filiation of the three people in these circumstances, because who would lose the right?
The last person to request it, or would DNA prevail over gestation or vice versa?
We must admit that these are not easy questions to answer.
Recognition of triple filiations formed abroad
The situation could also arise about recognising these family groups that have been formed in some country where they are already legal.
For the time being, there isn’t any country that recognises them, but there are likely to be some in the future among the countries pioneering these questions, such as The Netherlands or Belgium.
So, if it was the case that one of the mothers was Spanish, and this triple filiation to a child was recognised in The Netherlands, could that decision be recognised in Spain?
In principle it would be impossible, since it is easy to conclude that triple filiation goes against the Spanish legal policy, but if it was not recognised, this would seem to go against two of our essential legal principles: the principle of equality and the principle that requires that the best interests of the child be protected in decisions regarding minors.
In regard to the principle of equality, if the filiation of the minors in regard to the three parents is not respected, which of the three are we to choose?
The child of a Spaniard, as a Spaniard, has the right to be registered with the Civil Registry.
How is this birth to be registered, then?
Are we to discriminate against one of the foreign progenitors, against one of the biological ones, or against the gestating mother?
If we choose the Spanish citizen due to her nationality, we are discriminating against one of the other two for that reason, and if we choose based on reproductive criteria, we are also discriminating against one of them, as would be the case if we do so based on sex.
In the same way, if we do not accept recognition of this triple filiation that has already been validly constituted abroad, we would be negatively affecting the best interest of the minor to have the filiation of their three parents and we would propitiate a situation that is prejudicial to the minor, who would have a valid filiation with three parents, for example, in The Netherlands, and a legal limbo in Spain, due to this filiation not being recognised.
There’s no doubt that there’s a debate already set up here.
Such cases have not yet come before our courts, but it is only a question of time for this to occur, so the legislators had better be prepared to regulate these new situations that reality is posing for us and in regards to which the Law cannot stand aside.
The attempts to contain surrogate motherhood in Spain have been overtaken by international realities, since many foreign countries allow this technique, which has then been logically taken advantage of by Spanish citizens to have their children outside our borders. There are more than a few places where surrogate motherhood is legal and many of them are countries close to us where the question of protecting the rights of the parties participating is not put up for question.
This practice of having recourse to surrogate motherhood abroad has become something that is not only frequent, as we have already mentioned, but it has also been regulated since 2010 when the DGRN Instruction of 5 October 2010 was issued on the filiation registry system for substitute gestation babies, a regulation that makes registration of the filiation in the Spanish Civil Registry, provided that the authorities confirm that the required guarantees have been met in the foreign country involved.
Principio del formulario
Final del formulario
This Resolution could be a starting point for drafting a new law since what it does is to establish some minimum requirements for surrogate motherhood abroad to be recognised in Spain. Proceeding on the basis of the conditions required for practices abroad, they should also be required if the technique takes place in Spanish territory.
Some of the requirements of this new Instruction could easily be incorporated into the new law, such as, for example, that the parties have to carry out everything through a court procedure in which a ruling is handed down determining the filiation of the newborn child, that all procedural rights of the parties are safeguarded, particularly those of the birth mother, whose consent must be free and informed, guaranteeing this through some public authority, and that the consent given should be irrevocable.
In regard to the child’s best interests, this should be the guiding principle throughout the law, which is also in accordance with the case law of the European Court of Human Rights on the subject, and it would be necessary to ensure the right of the minor to enjoy a unique identity, as proclaimed by the ECHR.
These are some of the legal requirements that such a law should incorporate, since the aim is definitely to ensure that the rights of all the parties involved are safeguarded. Some additional questions could be added, such as the need for residence in Spain if the desire is not tot to attract people from surrounding countries or others for economic reasons that, in one way or another, would necessarily have an influence. A comparative study of the laws in our surrounding environment might be useful.
It seems that, in these or other terms, the regulation of surrogate motherhood will see the light and with that we can hope for protection of the minors, the birth mothers, and of all the values in play with this technique.
The kafala or kafalah (sponsorship) is a concept of care relating to child protection that exists in Islamic countries. In Morocco, it is governed by law 15-01 of 13 June 2002 on foster care for abandoned children (published in the Official Gazette of Morocco, number 5036 of 5 September 2002). Read more