SPAIN Law and Practice Contributed by: Esther Susín, E. Susín International Law Firm
• later, with the consent of the child’s legal repre - sentative if the child is a minor, through a court declaration. 1.4 Requirements for Non-Genetic Parents For non-genetic parents seeking to obtain parental responsibility, certain legal requirements must be met ‒ • the existence of an affective and/or cohabitation bond between the child and the non-genetic par - ent; • circumstances in which the biological parent has been deprived, suspended or excluded from the exercise of parental authority, or does not comply with the duties inherent to it; • procedures for the attribution of parental authority, guardianship or adoption in favour of a third party (not a biological parent), either in the best interests of the child or to consolidate a de facto parent- child relationship; and • application of the CCC or the CC. To achieve this objective, the arguments to be used, based on the selected cases, are as follows. • Existence of a consolidated parent-child relation - ship and prolonged cohabitation – if the non-genet - ic parent has lived with the child from an early age and has exercised parental functions continuously, the attribution of parental authority or adoption can be requested, thus formalising a de facto situation for the benefit of the child. • Best interests of the child and disinterest/incapac - ity of the biological parent – if the biological parent has shown disinterest, lack of contact or failure to comply with their duties, the exclusive attribution of parental authority to the applicant can be justified, prioritising the well-being and stability of the child. • Suspension or deprivation of parental authority of the biological parent – in circumstances of family crisis, abandonment or risk to the child, the judicial authority may suspend or deprive the biological parent of parental authority and assign it to a third party who better guarantees the interests of the child. • Equating cohabitation to that of separated parents – Catalan jurisprudence allows de facto cohabita -
tion to be equated to that legally required for the adoption or attribution of parental authority, even in cases of separation or divorce. 1.5 Relevance of Marriage at Point of Conception or Birth Requirements for Non-Genetic Parents Requesting Parental Authority • Existence of a non-genetic parent requesting parental authority (eg, in assisted reproduction, surrogacy or adoption contexts). • Attribution of parental authority, especially in situ - ations where filiation is not biological or based on marriage. • Relevance of the marital status of the parents at the time of conception or birth. • Application of the CC or the CCC. Different Cases • Consent and formalisation in cases of a non-genet - ic parent – in assisted reproduction situations, the consent of the (non-genetic) spouse is essential for the attribution of parental authority, and must be formalised in accordance with the applicable regulations. In Catalonia, although the law requires a public deed, case law has allowed some flexibil - ity, but formalisation is still relevant for filiation and parental authority. • Adoption and surrogacy – in the case of minors born by surrogacy, the attribution of parental authority to the non-genetic parent (eg, the spouse of the biological parent) requires compliance with the legal requirements, especially the assent of the biological mother to the judicial authority. The marital status of the parents may influence the pre - sumption of filiation, but the attribution of parental authority depends on compliance with the legal requirements and the best interests of the child. • Deprivation or exclusion of parental rights of the biological parent – if the biological parent is in seri - ous breach of their duties, their consent is not nec - essary for a third party (eg, the spouse of the other parent) to obtain parental rights through adoption. This is applicable in both the CC and the CCC, prioritising the best interests of the child. • Extramarital filiation and parental authority – when filiation is determined judicially against the opposi - tion of the parent, the law provides for the exclu -
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