The prospective parents in search of a law

Legislation prohibits Spaniards with fertility issues from using a surrogate. Couples are using services in the US, but even then there are legal obstacles to overcome

José Hernando and Javier Herraiz with their daughters, who were born via a surrogate in the US.
José Hernando and Javier Herraiz with their daughters, who were born via a surrogate in the US.Samuel Sánchez

Inés is a business executive from Barcelona; Mar is a lawyer from the same city; and Elena lives in Madrid. All three of them - who are using assumed names for this story - recently spent a week in Los Angeles to deal with the complex paperwork that might bring them closer to their dream: having a child via a surrogate mother.

Surrogacy is legal in California but not in Spain. Inés is single. Mar and Elena traveled to the US with their partners. All three have fertility problems and cannot have children the traditional way. That is why they flew to Los Angeles. But they had to overcome many social and psychological hurdles before taking the step. To help them with all of these issues, there was someone else on the trip: Sebastián Expósito, the coordinator at VDA Fertility Consulting, a Barcelona-based business specializing in surrogacy. It is a flourishing industry, given that the last three or four years have seen greatly increased demand for these services.

Expósito opened his business in 2010 after experiencing the process first-hand four years earlier. He is the father of Salma, a five-year-old girl who recently proclaimed him "the best dad in the world," he explains radiantly. And he has other reasons to celebrate: after a three-year wait, he has just received a court ruling that recognizes Salma's right to be included on the Barcelona Civil Registry (unless the public prosecutor chooses to appeal).

"I was the first single man in Catalonia to go public with the fact that I was the father of a surrogate child. I appeared on the Ana Rosa television show [the Spanish equivalent of Oprah Winfrey]. I had no choice but to do it, to see if things finally got moving in Spain and these children gained legal recognition. Until today, my daughter has been a foreign resident living with her Spanish father. That meant she had no right to Social Security or to attend public schools, nor any of the other benefits reserved for citizens. Fortunately, children born after October 5, 2010 are eligible for inclusion on the Civil Registry."

Until today, my daughter was a foreigner living with her Spanish father"

It is pointless to ask Expósito whether it was worth it to go through a surrogate to become a single father. It is obvious that he is so happy with the experience that he has now chosen to make a living helping other people do the same. After publishing his story on a blog, so many people wrote to him asking for help and advice that he decided to set up the firm. These days, Expósito acts as a friendly chaperone who guides clients through the maze of assisted reproduction, helped by his first-hand knowledge of the misgivings that assail people in this situation.

Mar, Elena and their partners, along with Inés, spent the first day on their US quest at the California Fertility Partners clinic, undergoing exhaustive medical tests. Doctor Guy E. Ringler, a specialist in endocrinology and fertility, is very strict about these screening exams, as they must comply with US health requirements. For the last 23 years he has been seeing patients from Spain and other parts of the world seeking a gestational carrier for their child.

"There has to be a real need, a clear infertility problem in order to authorize this step," he says, as opposed to a desire not to ruin one's figure by getting someone else to carry the child. "Surrogate mothers are taking a great deal of personal risk by getting pregnant to help people who really need to resort to their services to have a child. In my experience, they are extraordinary women who are happy to help other people become parents. The satisfaction they feel when the baby is born and they hand it over to the mother is their main motivation, not the economic side of it - I hear the same thing time after time. They are donating their reproductive organs to help others, and that's a gift." Ringler admits that carriers do, of course, receive financial compensation, but he will not say how much. Other sources suggest it might be around 25 percent of the cost of the procedure.

Inés has successfully passed the screening tests. "I always wanted to have children, but for health and age reasons it would be a high-risk pregnancy and the doctors were strongly against it," she explains. "Because of those same health reasons, I cannot donate my own eggs."

Surrogate mothers are taking a great deal of risk by getting pregnant"

Before embarking on this adventure she considered adopting, but she knew that as a single parent she was not a good candidate and would run into hurdles; at one point, she even thought she would have to give up on motherhood altogether. In the end, it was her own doctor who put her in touch with Expósito's agency. "It has changed my life," she says with a smile that says it all.

Elena did not have any trouble with her medical tests either. "I was a mother once, but I lost my daughter to disease when she was two. We wanted another child, but at the age of 45 it's kind of late for us. First we considered adopting, then found out we might have to wait up to 10 years. We researched other countries, and even though the costs were significantly lower, none of them offered the kind of guarantees that the United States does. This is going to represent a great financial sacrifice for us, and contrary to what they say, people who do this are not rich. Depending on what you need, it can cost up to 120,000 euros - imagine what that means for us."

Mar is a breast cancer survivor, and if she got pregnant the cancer could return. "I read a book that opened up my mind. I totally identified with a woman who had gone through the same thing, and who finally got her child through surrogacy."

The "Fertility Tour," as Expósito refers to it, continues the next day with a visit to the legal team. The time has come to dive into the complex world of health insurance. The morning is spent going from office to office, as there are many issues to deal with. "The baby has a lawyer, the surrogate mother has a lawyer, and each of the parties in the process has a lawyer," explains Mar, who knows out of professional experience how important the legal aspects are.

The baby, the surrogate, and all the other parties in the process have lawyers"

According to Den Masserman, a lawyer who has been formalizing surrogacy contracts for 21 years, "California is the best state for it. We don't discriminate against anyone here for reasons of sexual orientation, age, being single or married... In Texas, for instance, homosexual couples are not allowed [to use surrogacy]. But we are inclusive - we help everyone have children."

Health insurance is also vital. "The baby needs to have health insurance covering all expenses up until delivery. The good news is, following Obama's health reform, a lot of those costs are covered," explains Expósito.

In the afternoon, it is time to see the sperm banks. The group arrives at the facilities that store the semen and the babies' umbilical cord samples. By this point everyone is a bit tired, but they still need to pay attention. Although it is only Inés who needs the service, it is worth learning how it works, just in case. Once the contract has been signed, patients get access to the donor database. "They are very standardized and basically it works through the internet. You see a dossier with the donor's physical traits, schooling level, habits, interests and pictures of them as children of no more than 12. I would like to have a daughter who looks like me, with blue eyes and blond hair, but if I get a completely different child, I will love it just the same," says Inés, who knows very well what kind of donor she is looking for: tall, blond, blue-eyed and with a college degree.

They are all staying at the same hotel, so at the end of the day there is time to relax and talk about the day's events. There's no time for any of the city sights, since the next day will be just as packed. This time, the agenda includes visits to two surrogate agencies. The first agency lists their available surrogates: four young women under 25, two of whom are Hispanic and the other two white. The Hispanics have already been surrogate mothers before. One is a lesbian, while the other comes from a traditional family and will only work with straight couples.

Gay couples in Texas aren't allowed to use surrogacy, but here we are inclusive"

"Both the future mothers and the surrogate carriers make a choice, and it is not infrequent to find young women who do not wish to carry a baby for a specific couple," explains Expósito. "Bear in mind that both parties are going to enter into a very close relationship, and if there's not a good feeling between them at the start, there could be problems later."

Mar finds this the most beautiful part of the process. "Can you imagine? I will be able to follow the entire experience of pregnancy through her," she says. Agencies make a very rigorous selection of surrogate mothers. They are between 21 and 38 years old, with a perfectly healthy reproductive system, and they must have given birth at least once already; they must also be socially and psychologically balanced. Criminal records and eating habits are scrutinized.

The choice is made through pictures of the candidates, although there is a final interview before a decision is taken. If there is no connection, there is no contract. Mar, Inés and Elena spent their weekend in Los Angeles personally interviewing the candidates they were most interested in, although no final decision was required. "This is just an information-gathering tour," says Expósito over and over, in a bid to relieve the pressure.

Regardless of how the interviews are conducted, the parties need to meet in person between weeks 20 and 26 of gestation, when the parents will travel to the US once more to attend the court session that will establish that the baby belongs to the people who hired the surrogate's services, rather than the mother who gave birth to it.

To Inés, who cannot use her own eggs, the most delicate part of the process is egg selection. The following day will be spent visiting several agencies. "This is one of the key issues for me. I am looking for a certain intellectual level, a quality that makes me bond with this person."

"The egg donor agency has a database with the women's physical and psychological characteristics," explains Expósito. "Another option is adopting one of the many embryos that are produced through assisted reproduction techniques. Many people are becoming aware that it is a good thing to bring those frozen embryos to life."

Los Angeles offers a wide array of egg donor agencies, sperm banks and surrogate mothers. The tour is coming to an end, although the group may continue doing research back in Spain. At the end of the trip, everyone seems happy with what they have seen and heard here. They are especially impressed with how well everything is organized.

"Do you think that when surrogacy is legal in Spain, we Spaniards will be able to set up the process as well as this?" asks Mar out loud. The faces around her show skepticism, although there is some hope that surrogate motherhood will be a reality in the near future. That would also save people a lot of money.

But so far there is nothing to suggest any imminent legal changes in Spain. The Justice Ministry referred EL PAÍS to an October 2010 regulation on the entry of "those born through substitute gestation" on to the Civil Registry, and declined to answer questions about changes to the law. The regulation establishes that parents must produce a court ruling from the country of origin confirming that the surrogate mother gave up her rights to the baby. The only country where this is done is the United States, meaning that people who go through less expensive processes in other countries will have additional paperwork to deal with. The birth certificates of babies from India and Russia show the parents to be the woman who bore the baby and the male parent who hired her services. The next step is getting the surrogate mother to renounce her rights and having the other parent adopt the baby.

The Surrogate Gestation Association is preparing to collect enough signatures for a popular legislative initiative in Congress with the aim of getting surrogacy approved in Spain. Aurora González, the association secretary, considers it "an enormous discrimination that the only people who can have children are those who are able to pay the amounts currently being requested." This organization supports legislation similar to that in Canada, where the gestational carrier receives regulated compensation, just like egg or sperm donors.

For Inés, Mar and Elena, their adventure has just begun. They have only taken the first step, but if all goes well, in a year's time, they will travel to Los Angeles once again, to hold their new babies in their arms.

"We took surrogacy out of the closet"


Two years ago, Javier Herraiz and his husband José Hernando bought two tickets for their outward journey, and four for their return. After a long process, their twin daughters Olivia and Gadea were born at a California clinic thanks to a surrogate mother. The United States was always their first option because of the legal and medical safeguards it offers. It was the same for Antonio Vila and his husband, whose child Manuela was born in 2010.

Vila still remembers the moment when he met the woman who would carry his child. "It's a strange feeling, meeting one of the most important people in your life," he says. Vila and his partner filled out a form describing themselves to the candidate surrogates, who make the first choice. Their relationship began with dinner at a restaurant, a visit to her house and a series of emails, which did not end with the delivery. "We are still in touch with her, in fact we want to go and see her," says Vila.

Vila and Herraiz are the president and secretary, respectively, of an association called Son Nuestros Hijos (They Are Our Children), which has brought together more than 200 families. It was founded in 2008 following the couple's struggle to get their twins included on the Civil Registry. Two years after that, they obtained a government instruction regulating the registration of children born to surrogate mothers. That first year was a bit chaotic, as registry workers were unfamiliar with the new regulations and were not sure how to proceed, but now the process is smooth. Before this, the children kept their US citizenship.

"The harder adoption gets, the more people turn to surrogacy," explains Marisa Bautista, a Madrid lawyer who specializes in advising couples who are interested in the option.

At the time when Son Nuestros Hijos was founded, most of its members came from the gay community. But that trend has been reversed, they say. "We took surrogacy out of the closet. It is no longer something you need to hide," Vila explains.

Their association provides counseling to couples or singles who are thinking of surrogacy. Vila and Herraiz don't trust some of the mediators who have popped up in Spain in recent years, saying that "they don't do anything you couldn't do yourself."

The United States is the top choice for couples seeking a surrogate mother. The legal security compensates the high costs of travel, medical assistance and legal advice. Every step is regulated, and if all goes well, the process will cost clients around 100,000 euros, although anything can raise the price - a day inside the incubator, hospitalization of the surrogate mother, or delays with legal documents, for instance.

Although Spain has the most advanced legislation in the world in terms of assisted reproduction - couples from all over Europe come for treatment - surrogacy has not been approved. "It involves commercializing a woman's womb, even if she agrees with it," explains Marcelo Palacios, who is the founder of the International Bioethics Society, a former Socialist deputy and one of the people who drafted the 1988 Assisted Reproduction Act, which has since undergone minor reforms.

Spain forbids donors from getting paid (whether it be for a kidney or an egg), although egg donors get compensation for the inconvenience caused by the procedure. "The text of the law established that [payment] could be considered the purchase of women in financial hardship. We also foresaw major problems such as the surrogate mother not wanting to give up the child, or a child with deformities being rejected. Besides, all deliveries can have complications and some may have consequences for the mother. Who would cover the cost of those problems?"

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