SPAIN Law and Practice Contributed by: Álvaro Checa, Miguel Checa, José María Vargas-Machuca Reyes and Andrea Fernández Grymierski, KINSHIP
Surrogacy and Posthumous Conception Surrogacy agreements are null and void under Span- ish law on public policy grounds. Parentage based on foreign surrogacy arrangements is not recognised in Spain. Posthumous conception is permitted under Spanish law, subject to certain requirements, the main one being that the parent has expressly provided for it in a will or public deed, in accordance with the provi- sions of the Spanish Law on Assisted Reproduction Techniques. Foreign situations may create recognition gaps, potentially affecting succession rights unless parentage is validly established under Spanish law. 11.2 Conflicts and Divergent Laws In Spain, public policy ( orden público internacional ) as a corrective mechanism vis-à-vis foreign legal systems has manifested itself most visibly in cases involving Islamic family and succession law. Spanish authorities have drawn a clear boundary where for- eign norms conflict with constitutionally entrenched principles of equality, particularly gender equality under Article 14 of the Constitution. Thus, the rule of differential inheritance shares – whereby a male heir receives twice the portion of a female heir (the prin- ciple of tafadul ) – has been expressly rejected by the Directorate-General in cases of intestate succession, on the ground that its application would contravene fundamental constitutional values. By contrast, prac- tices such as polygamy and unilateral repudiation ( talaq ), which are structurally incompatible with the Spanish conception of marriage as monogamous and grounded in formal equality between spouses, can- not be constituted within Spanish territory. Neverthe- less, Spanish private international law has adopted a nuanced approach when such legal situations have been validly established abroad and have produced consolidated legal effects. In such circumstances, lim- ited recognition may be afforded for specific purpos- es: for example, co-wives may share entitlement to a Spanish survivor’s pension or accident compensation, and a repudiation may be acknowledged insofar as it evidences the dissolved marital status of the woman and thus her capacity to enter into a subsequent mar- riage in Spain.
The Directorate-General, together with the jurispru- dence of the Spanish Supreme Court, have adopted a position of categorical non-recognition with respect to surrogacy arrangements carried out abroad, inso- far as such arrangements are incompatible with the foundational principles of the domestic legal order. Under Spanish law, gestational surrogacy contracts are null and void, and this normative prohibition oper- ates as an expression of international public policy that precludes the direct production of legal effects within Spain, even where parentage has been formally established in a foreign jurisdiction. Consequently, the intended Spanish mother cannot secure automatic recognition of maternity on the basis of the foreign birth registration or judicial decision but must instead resort to adoption proceedings in Spain to establish a filial relationship. Similarly, the intended father may ini- tiate ordinary judicial proceedings for the recognition of paternity only where he can substantiate a biologi- cal link to the child. 12. Cross-Border Succession Planning 12.1 Taxation of Cross-Border Estates and Transfers For a general description of the lifetime transfer impli- cations, please refer to 5. Tax Treatment of Lifetime Transfers and Testamentary Dispositions , and for a description of the testamentary dispositions, to 6. Lifetime Succession Planning Mechanisms . First, it should be noted that the relocation of the tes- tator to Spain does not, per se, create immediate tax implications, as the relevant connecting factors for IHT purposes are the tax residence of the heirs and/ or the existence of Spanish-situs assets within the estate. Should the heir become subject to IHT, the Spanish region to which the testator relocates may nonetheless be relevant, as it determines the appli- cable regional tax law. This is particularly significant given that certain regions provide substantial tax relief for transfers to next-of-kin, as described in 6.1 Com- mon Planning Techniques . Conversely, the relocation to Spain of the heirs or members of the next generation – even if for educa- tional purposes – may create material tax exposure,
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