Many couples of men who wish to be parents turn to the surrogacy in another country that allows this practice, since in Spain it is not legal. This is what Javier and Daniel did in the United States, given their desire to be parents.
Upon returning from San Francisco in 2015 after the birth of her baby, Social Security denied marriage the possibility of applying for maternity assistance because they understand that surrogacy is prohibited in Spain. But the Canary Superior Court of Justice contradicted this decision and just recognize the right to access maternity benefits.
A right of the parents and the daughter
The magistrate explains in the sentence that two protectable situations related to the arrival of a minor to the family can be distinguished. On the one hand, the birth (as a cause for suspension of the employment contract, which only corresponds to the mother who has physically gestated and given birth) and the situation without childbirth of the parents that, "in the degree and condition that corresponds, they are also affected by this new family configuration, but from another perspective and relationship with the subject that motivates it."
Here the second assumption would be given. Although there is no mother who has given birth (yes there is but has renounced her rights as a mother) they are two men who exercise filiation achieved through pregnancy by substitution.
When there is a situation of adoption or foster care, maternity is granted to the mother, but what happens when it comes to two men who are parents for surrogacy?
The judge considers that both regulated modalities (adoption and foster care) "are protected and taxable figures for maternity benefits" and that although this couple has not resorted to either, she understands that her situation is similar to those of those opt for them and that should prevail the "best interest of the minor" Y "respect your right to fully enjoy your family and private life".
Although surrogacy is prohibited in Spain, a couple can resort to a womb for rent abroad and register the child as their child in the Civil Registry. And also, according to this resolution, the homosexual couple has the right to receive the maternity benefit recognized by Social Security.
