Under Spanish law (Civil Code, Articles 108-120, Boletín Oficial del Estado), parentage is determined by:
(a) The birth mother, who is automatically recognized as a legal parent at birth (Article 108).
(b) The biological father, who is presumed to be the legal parent if married to the mother (Article 116) or if he acknowledges paternity (Article 120). For unmarried couples, the father must formally acknowledge the child or establish paternity through court proceedings (Article 113).
In cases of informal sperm donation (e.g., at-home artificial insemination or natural insemination), the donor may be recognized as the legal father if he acknowledges paternity or if a court establishes paternity based on biological evidence or intent to parent (Article 131), particularly if he is involved in the child’s life post-birth.
Assisted Reproduction:
In Spain, gamete donation is regulated under Law 14/2006 on Assisted Human Reproduction Techniques (Ley 14/2006, de 26 de mayo, Boletín Oficial del Estado). “Donor-assisted human reproduction” (DAHR) involves donated gametes (sperm, eggs, or embryos) used in licensed fertility clinics (Article 2). Note: Informal sperm donation outside clinical settings is not regulated and is generally considered illegal under this framework.
DAHR is permitted for heterosexual couples, same-sex couples (since 2005), and single women (Article 6). Donors must be 18-35 years old, healthy, and consent to anonymity, though a 2021 royal decree (Real Decreto 412/2021) allows limited donor identifiability for medical reasons (e.g., genetic health risks). Donors are limited to six live births from their donations (Article 5).
Sperm Donor Agreements:
In regulated DAHR, the donor is not a legal parent. Law 14/2006 ensures donors have no parental rights or responsibilities (Article 5), and the intending parents (birth mother and her partner, if applicable) are recognized as legal parents at birth (Article 7). Note: Informal sperm donation lacks this protection—donors risk being recognized as legal parents under general paternity laws (Article 116 or 131), especially if they acknowledge the child or are involved post-birth.
For natural insemination (NI) or informal AI, Spanish law does not provide specific exclusions for donors. A donor could be deemed the legal father if paternity is established, particularly if the mother is unmarried and the donor acknowledges the child. Courts may also intervene to establish paternity if there’s evidence of intent to parent.
Surrogacy:
Surrogacy is illegal in Spain under Law 14/2006 (Article 10, Boletín Oficial del Estado), whether altruistic or commercial. Any surrogacy agreement is void, and parentage defaults to the birth mother.
For international surrogacy, Spanish courts have recognized parentage for intending parents in some cases (e.g., Supreme Court ruling 835/2013), but the process requires legal proceedings to register the child, often involving proof of the child’s best interests. Legislative proposals in 2024 aim to clarify this, but surrogacy remains banned domestically.
Parentage Agreements:
In regulated DAHR, parentage is formalized through consents at fertility clinics, with intending parents recognized at birth registration (Article 7). Informal agreements (e.g., co-parenting or donor contracts outside DAHR) lack legal standing in Spain. Courts may need to intervene under Article 131 to establish or contest paternity if disputes arise.
Informal arrangements carry significant legal risks, as Spanish law prioritizes biological parentage over intent in non-regulated settings. A donor could claim paternity, or the mother could seek child support, depending on judicial interpretation.