Surrogacy raises tensions between reproductive rights, gender equality, and the protection of human dignity. This paper analyzes how prohibition in Spain and the legal void in Mexico constitute forms of discrimination against women. The objective is to examine, from a legal and human rights perspective, the implications of silence or prohibition on reproductive autonomy. The methodology used is dogmatic-analytical, based on the analysis of international norms and comparative legislation. The paper is structured around a study of the international framework (CEDAW), followed by an analysis of the legal context in Spain and Mexico, and concludes with a comparative section and preliminary findings that highlight the need for reforms that respect women’s autonomy.
1. Introduction
Surrogacy, also known as gestational surrogacy, has positioned itself at the center of contemporary debates on reproductive rights, bodily autonomy and human dignity. While assisted reproductive technologies have expanded the possibilities for exercising the right to form a family, national regulatory frameworks have oscillated between total prohibition and the absence of regulation, generating tensions that particularly affect the women involved in these processes.
In this context, it is relevant to analyze how prohibitionism in Spain and the legal vacuum in Mexico configure two different forms of rights violations, which, although opposed in their regulatory design, converge in the same effect: the restriction of reproductive autonomy and the reproduction of patterns of structural discrimination against women. Legislative silence, on the one hand, and absolute prohibition, on the other, make women’s agency invisible and ignore their capacity for free and informed decision making.
International human rights law, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), expressly recognizes the obligation of States to respect and guarantee access to sexual and reproductive rights, including access to assisted reproduction techniques in an equitable manner and without discrimination.
Both Spain and Mexico have signed relevant international commitments on women’s human rights, such as those established in the CEDAW, and therefore, this paper aims to analyze, from a legal and human rights perspective, whether both countries have been congruent with such international commitments, as well as the impact of prohibitionist policies and regulatory omission on the effective exercise of women’s reproductive rights in Spain and Mexico. It will seek to demonstrate that both regulatory strategies, although dissimilar, produce similar violations of women’s right to reproductive autonomy, dignity and equality.
The methodology used is dogmatic-analytical, consisting of the study of primary sources of international law, national legislation and relevant jurisprudence. The comparative method will also be used to identify similarities and differences between the legal frameworks of Spain and Mexico, as well as their practical consequences.
The structure of the paper is developed in six main sections. It begins with an analysis of the international context through the CEDAW. Subsequently, the legal situation of surrogacy in Spain and Mexico is specifically analyzed, followed by a critical comparison between both approaches, ending with a section of conclusions.
2. International context: CEDAW
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the United Nations General Assembly, is the most important international legal instrument in the field of women’s human rights. By virtue of this Convention, the States Parties – among them Spain and Mexico – undertake to eliminate all forms of discrimination against women in public and private life, guaranteeing the full exercise of their rights under conditions of equality.
Among the rights protected is access to sexual and reproductive health. Article 12 obliges States to adopt measures to guarantee adequate medical services, including family planning care, while Article 16, paragraph e), expressly recognizes the right of women to decide freely and responsibly the number and spacing of their children, and to have the information, education and means necessary to exercise this right.
General Recommendation No. 24 of the CEDAW Committee (1999) reinforces this interpretation by stating that access to sexual and reproductive health is a fundamental human right. States parties have a duty to respect, protect and effectively guarantee it, including removing legal, administrative and sociocultural barriers that restrict women’s access to these services. Such barriers may include discriminatory requirements (such as spousal authorization), prohibitive costs, or even lack of transportation to medical facilities.
In addition, the Committee has stressed that the denial or restriction of these services constitutes a form of discrimination. Therefore, it insists on the need to guarantee women’s free and informed consent, respect for their privacy, and protection of their dignity and autonomy in all medical procedures related to reproductive health.
Article 5 of the Convention also imposes on States the obligation to transform sociocultural patterns that perpetuate gender inequality. The legal and social construction of the pregnant woman as a passive subject, incapable of making informed decisions about her body, is a clear example of these stereotypes that must be eliminated.
In line with this, General Recommendation No. 33 on access to justice establishes that States should ensure effective mechanisms for women to claim and exercise their rights, including reproductive rights, in an accessible manner and without discrimination.
General Recommendation No. 35, for its part, establishes that violations of sexual and reproductive rights, including forced sterilization, forced abortion, denial of services or institutional abuse in medical care, constitute forms of gender-based violence that may amount to cruel, inhuman or degrading treatment.
Specifically, the Committee has required States parties:
- Repeal laws that criminalize or restrict access to reproductive health services;
- Guarantee free and informed consent in all medical procedures;
- Prevent institutional and structural violence in health services;
- Establish effective reparation mechanisms for affected women;
- Design intersectional public policies, sensitive to multiple discrimination factors such as age, gender, ethnicity, disability, migratory status or socioeconomic condition.
Spain ratified CEDAW on January 5, 1984, committing itself to guaranteeing equal rights in access to reproductive health. Mexico followed suit in March 1981. Thus, both States are legally obliged to:
- Recognize and protect women’s reproductive autonomy;
- Eradicate all legislation that perpetuates gender stereotypes; and
- Ensure effective access to justice and protection mechanisms in the area of reproductive rights.
In light of these international obligations, the following section examines whether the national regulatory frameworks of Spain and Mexico on surrogacy are in line with the standards established by the CEDAW and whether they are consistent with the commitments made, or whether they are discriminatory towards women.
3. Situation in Spain: Prohibitionism
Spain adopts a position of absolute prohibitionism with respect to gestational surrogacy, reflecting a restrictive conception of reproductive rights that particularly impacts on women’s reproductive autonomy, as explained below:
3.1 Reproductive autonomy
In Spanish law, reproductive autonomy constitutes an essential manifestation of the fundamental rights to human dignity, to physical and moral integrity, and to the free development of the personality, enshrined in Articles 10 and 15 of the Spanish Constitution of 1978.
Although the Constitution does not expressly use the term “reproductive autonomy”, its recognition has been consolidated through constitutional interpretation and legislative and jurisprudential evolution in the area of sexual and reproductive rights. Thus, reproductive autonomy is understood as the right of every person to decide freely on his or her reproductive capacity, including the possibility of determining whether, when, by what means and under what conditions he or she wishes to procreate.
The legislator has developed this dimension of individual freedom through regulations such as Organic Law 2/2010, on sexual and reproductive health and the voluntary interruption of pregnancy, and Law 14/2006, on assisted human reproduction techniques. These laws establish access to methods of contraception, to voluntary interruption of pregnancy in the cases provided for, and to assisted reproduction techniques, reinforcing the right of women and couples to decide on their maternity or paternity. However, the exercise of reproductive autonomy, like all fundamental rights, is not absolute and is subject to limits derived from the protection of other constitutionally relevant goods, such as the life and dignity of third parties, as well as respect for public order.
Consequently, in Spanish law, reproductive autonomy, understood as a fundamental right, is affirmed as a guiding principle in matters of reproductive rights, but its exercise encounters specific restrictions in relation to gestational surrogacy, as will be explained below. This tension reveals the need for a systematic interpretation that harmonizes the principles of individual freedom, human dignity and protection of women, within the framework of a democratic society respectful of fundamental rights.
3.2 Legal framework: nullity of contracts
Law 14/2006 on assisted human reproduction techniques, establishes in its article 10 that:
“The contract by which the gestation is agreed, with or without price, at the expense of a woman who renounces maternal filiation in favor of the contracting party or a third party, shall be null and void.“
This prohibition is officially justified by the protection of the dignity of the pregnant woman, considering that her body cannot be the object of contracts that imply a reification of her reproductive function, considering that this practice goes against public order and the fundamental principles of Spanish law. However, this vision fails to incorporate a contemporary gender perspective since it presupposes that women cannot decide freely about their bodies, reinforcing a legal paternalism that makes their autonomy invisible.
In practice, this nullity means that surrogacy contracts entered into abroad – where it is legal or the practice is tolerated – are not recognized in Spain, which leads to serious obstacles for the filiation of minors born in other countries.
To cite an example, the Spanish Supreme Court, in judgments such as STS 835/2013 and the recent STS 123/2024, has maintained the position of considering surrogacy contracts null and void, reinforcing the principle that these agreements violate Spanish public order.
In its March 2024 ruling, the Supreme Court refused to recognize a California (USA) judgment validating a surrogacy contract. It argued that accepting such filiation would be contrary to the essential principles of the Spanish legal system, in particular:
- The dignity of women, considered as an insurmountable limit.
- The protection of the best interests of the minor, which must be guaranteed in accordance with Spanish law and not through foreign private agreements.
From a gender perspective, restrictions to gestational surrogacy, through prohibitionism as it happens in Spain under the argument that it violates women’s dignity, constitute a form of discrimination, because it perpetuates gender stereotypes that infantilize women, denying them the ability to make autonomous decisions about their bodies and life projects.
In this context, surrogacy represents a particularly complex area in Spanish law and this prohibition directly limits the scope of reproductive autonomy in Spain, by preventing women from deciding on the informed exercise of their reproductive autonomy to freely determine whether or not to participate in a surrogacy process.
This restriction acquires special relevance when contrasted with the regulatory treatment of other reproductive solidarity practices, such as egg donation, which are permitted in Spain.
3.3 Legal Antinomy: Surrogate Gestation vs. Egg Donation
In contrast to the absolute prohibition of gestational surrogacy, egg donation in Spain is regulated by Law 14/2006 on assisted human reproduction techniques. This law establishes that gamete donation, including egg donation, must be carried out under the principles of anonymity, altruism and free and informed consent. Under Article 5 of this law, the identity of the donor and the recipient must remain confidential, except in exceptional cases related to the protection of the health of the newborn. Likewise, donation is conceived as an altruistic act, prohibiting any type of economic benefit; only limited economic compensation is allowed, intended to cover the expenses and physical discomfort derived from the donation process.
The donor’s consent must be given expressly, freely and in writing, after receiving complete and adequate information about the medical procedures, the risks involved and the legal consequences of the donation. In addition, the authorized clinics are responsible for ensuring the traceability, quality and safety of the donated genetic material, as well as for ensuring the protection of the participants’ personal data.
In order to prevent situations of consanguinity, Spanish legislation establishes a maximum limit of six births derived from the same donor in the entire national territory. As for filiation rights, the donor has no legal relationship with the person who is born, guaranteeing that filiation corresponds exclusively to those who undergo the assisted reproduction technique.
The regulation of egg donation reflects the commitment of the Spanish legal system to the international commitments made when signing the CEDAW, related to the protection of women’s dignity, reproductive autonomy and public health, under strict parameters of medical ethics and respect for fundamental rights. However, this legislative openness contrasts sharply with the absolute prohibitionism that Spain maintains with respect to surrogacy, generating a legal antinomy that reveals inconsistencies in the treatment of the various forms of reproductive solidarity.
This difference in legal treatment is contradictory and poses a clear normative antinomy. While in the case of egg donation the capacity of women to give their free and altruistic consent in an act of reproductive collaboration is recognized, in gestational surrogacy this same capacity for self-determination is denied, always presupposing a situation of vulnerability or coercion.
There is no fully coherent justification from the point of view of fundamental rights to explain why gamete donation is accepted under the principle of reproductive solidarity, while gestational surrogacy, based on identical values, is absolutely forbidden.
The current regulation also ignores the advances in international law on reproductive autonomy and informed consent, recognized in instruments such as the CEDAW. Under these standards, respect for women’s free and responsible reproductive decisions is part of the essential core of human rights and must be protected against state restrictions based on paternalistic or stereotypical conceptions.
Thus, Spain’s disparate treatment of egg donation and surrogacy shows a lack of regulatory coherence which, in terms of human rights, could be interpreted as a form of gender-based discrimination, by unjustifiably restricting certain manifestations of female reproductive autonomy.
Specifically, the dichotomous view of reproductive autonomy in Spain has the following impact:
- It denies the reproductive autonomy of pregnant women by assuming that they are always in a situation of vulnerability or coercion, without analyzing each case on a case-by-case basis;
- It reproduces traditional gender stereotypes about the “natural” role of women in motherhood, limiting their capacity to decide for themselves in unconventional reproductive processes.
- It eliminates the legitimate option of those women who, with full capacity of consent, wish to help third parties to form a family.
- It fails to harmonize the protection of dignity with respect for women’s reproductive autonomy.
Within the framework of the CEDAW and the recommendations of international organizations, this policy is incompatible with the mandate to recognize the full legal capacity of women on equal terms.
4. Situation in Mexico: Legal vacuum
Mexico maintains an ambiguous position regarding gestational surrogacy, since there is no unified federal legislation on the subject. Some states, such as Mexico City, recognize it in a regulatory law, while states such as Tabasco and Sinaloa allow this practice under certain conditions, and other states prohibit it or do not regulate it in particular. Nevertheless, the Supreme Court of Justice of the Nation (SCJN) has intervened by establishing different criteria that form the legal basis for this practice, despite the absence of a homogeneous regulation at the federal level. These criteria have been fundamental to establish minimum parameters of legality and protection in the states that allow this practice. This situation demonstrates the need for a comprehensive and equitable federal regulatory framework that considers women’s reproductive autonomy as a central axis.
4.1 Reproductive autonomy
Reproductive autonomy in Mexico is recognized as a fundamental right, allowing individuals to make free and informed decisions about their reproductive life, without coercive or discriminatory intervention by the State. This principle seeks to guarantee that each person has the right to decide when and how to form a family, if desired, and what methods of reproduction to use. In this way, reproductive autonomy becomes an extension of fundamental human rights, specifically with regard to personal freedom and informed decision-making about one’s own body and procreation, especially for women.
Although the concept of reproductive autonomy has been fully accepted in Mexican jurisprudence and legislation, there are significant challenges to its full implementation. In the case of advanced methods of assisted reproduction, such as gestational surrogacy, individuals encounter legal obstacles due to the lack of clear federal legislation that regulates this practice in a uniform manner. This causes disparity in state laws and leaves many people without a clear legal framework to access these services safely and without discrimination.
Thus, the right to reproductive autonomy in Mexico is based on various constitutional guarantees, although it is not explicitly recognized in an article of the Political Constitution of the United Mexican States (CPEUM). However, the CPEUM establishes fundamental rights that serve as the basis for its protection. Article 4, for example, guarantees that all persons have the right to decide freely, responsibly and in an informed manner on the number and spacing of their children, which underscores the right to make reproductive decisions without external interference.
On the other hand, Article 1 of the CPEUM reinforces reproductive autonomy by guaranteeing equality before the law and non-discrimination. This implies that no person may be excluded from exercising his or her reproductive rights for reasons of gender, sexual orientation, marital status or other arbitrary considerations. In this way, it reinforces the idea that all people, regardless of their context, have the right to exercise their reproductive autonomy without legal or social barriers.
Finally, Article 3 of the CPEUM also plays a crucial role, as it establishes that comprehensive sexual education must be part of basic education, providing people with the necessary tools to make informed decisions about their reproductive life. This is fundamental to guarantee that reproductive autonomy is truly effective, since a person can only exercise it fully if they have access to adequate information about their reproductive options and their implications.
Although Mexico has legislation that promotes reproductive autonomy and provides a legal framework that facilitates the exercise of this right, the lack of explicit recognition of surrogacy represents a significant challenge to the realization of this right. This legislative ambiguity creates uncertainty for people seeking access to this reproductive method, as state officials are unfamiliar with the subject matter.
In this context, a coherent federal legislation is required to allow the correct materialization of reproductive rights, ensuring that all people can exercise their autonomy fully and without legal obstacles.
4.2 Legal framework: validity of contracts
One of the most relevant legal aspects that the Supreme Court of Justice of the Nation (SCJN) has addressed regarding surrogacy is the validity of the contracts that give rise to this figure. In its rulings, the Court has held that such agreements are legally valid when they are based on the free and informed consent of the parties and comply with constitutional principles, particularly the best interests of the child, the autonomy of the will and human dignity.
The recognition of contractual validity does not imply unconditional acceptance. On the contrary, the SCJN has established that such contracts must comply with certain essential conditions to be considered legitimate: they must be clear in their clauses, be free of coercion or simulation, respect the physical and emotional integrity of the pregnant woman and provide for mechanisms that ensure the legal protection of the child from birth. This vision favors a guaranteeing approach, where contractual freedom is conditioned by ethical and constitutional limits.
The Court has also interpreted that surrogacy contracts are part of the exercise of the right to family planning and assisted procreation, and therefore their conclusion is protected by the human rights framework. This gives them a legal dimension that transcends the merely civil, inserting these agreements within the spectrum of reproductive rights. Thus, their validity not only leans towards private law but also towards constitutional law.
Accordingly, the SCJN has emphasized that the Mexican State has the obligation to guarantee a regulatory and judicial environment that supports the effectiveness of these contracts, avoiding legal loopholes that may give rise to conflicts or violations. In this sense, the role of the administrative authorities is key to recognize the filiation of the child born through this practice according to the procreational will expressed in the contract, and not only based on biological or gestational criteria.
In order to concretize the above, we transcribe a section of the criteria developed by the SCJN, available under Digital Registry: 2024847, entitled gestational surrogacy or surrogacy, minimum guidelines for the authorities in charge of supervising the validity of a contract of this nature:
“In strict adherence to women’s right to a life free of violence and discrimination, this First Chamber considers it necessary to specify the following minimum guidelines for action aimed at the authorities responsible for supervising the validity of a contract of this nature: a) Verify that the contract explicitly states the risks that potential parents could or should assume in the event of non-compliance by the surrogate mother; b) Ensure that, if a penalty for breach by the surrogate mother is agreed upon, it is reasonable, taking into account her particular circumstances, such as her socioeconomic situation or the severity of any psychological impact; c) Verify that the contract proportionally distributes the burdens of non-compliance between the parties, protecting the party that is at a disadvantage for economic reasons; d) Verify that the surrogate mother and the intended parents are fully aware of these possible penalties and implications in the event of breach by the surrogate mother; e) Ensure that no clauses are agreed upon that deny the surrogate mother the possibility of conducting herself in accordance with her life plan or that put her health at risk; and f) In the event that financial compensation is agreed upon, monitor the manner in which it is to be delivered and the consequences of not doing so, in order to ensure the well-being of the surrogate mother.
In this criterion, the SCJN establishes that surrogacy contracts must comply with fundamental principles of clarity, equity and respect for the human rights of the parties involved, especially with respect to the pregnant woman, and that directly impacts the children born through this process. The criterion also underscores the importance of ensuring that these contracts are entered into voluntarily, free of coercion, and that the authorities in charge of their validation follow established guidelines to protect the well-being of all those involved.
The establishment of minimum guidelines for the validity of surrogacy contracts set an essential precedent in Mexico, providing clear guidelines on how these contracts must be structured in order to be valid and binding. By validating their existence, it consolidates a legal narrative in which reproductive rights are compatible with civil law.
However, the legal validity recognized by the Supreme Court does not automatically translate into uniform application at the administrative level. In practice, many civil authorities -such as state registries or public health authorities- lack clear guidelines for recognizing the effects of these contracts, which generates a gap between the jurisprudential criteria and their execution. This institutional fragmentation leaves pregnant women in a situation of legal insecurity, violating the principle of legality and the right to effective access to justice, especially in states where there is no explicit local regulation.
4.3 Legal Antinomy: Surrogacy vs. Presumption of maternity
Beyond the formal validity of the contracts, one of the main legal obstacles to the effective implementation of surrogacy in Mexico is the contradiction between these agreements and the traditional presumptions of civil and family law regarding filiation.
In particular, one of the main legal problems that arise in cases of gestational surrogacy is the tension and contradiction between the procreational will expressed in the contract and the automatic application of what, for the purposes of this paper, will be called “presumption of maternity“.
The presumption of maternity implies that, under Mexican civil law, the woman who gives birth is automatically considered by the authorities to be the mother of the newborn child, with all the rights and obligations that this entails. However, in cases of gestational surrogacy, the baby’s filiation is based on the procreational will of the intended parents and the lack of it in the pregnant woman. Not based on gender stereotypes related exclusively to the biological functions of a woman, since motherhood is not reduced to the act of giving birth, but implies the conscious desire to raise, care for and assume legal and affective responsibility for the infant born.
The legal manifestation that distinguishes in a biological fact the procreational will, currently can be made through a gestational contract, as long as it complies with the bases established by the SCJN for its validity. However, even when the pregnant woman declares her free, informed and express will of not wishing to assume the maternity of the infant born from gestational surrogacy, the conflict between social reality and the traditional norm persists. This antinomy between human rights and the presumption of maternity, which arises from the absence of specialized legislation on the subject, generates a legal vacuum that jeopardizes legal certainty, legal security and full respect for reproductive and sexual rights.
The impact of this legal antinomy becomes evident when, despite the clear decision of the pregnant woman and the intention of the intended parents in the signed agreement, the authorities do not allow the baby to be registered under the name of the intended parents.
The legal ignorance of the existence of the infant and its proper filial ties places pregnant women in a situation of vulnerability. Despite the fact that they do not wish to be mothers of the infants, the legislation in force continues to attribute such status to them. This imposes on women rights and responsibilities in terms of filiation that they have not requested and do not wish to assume.
The effects of this legal antinomy are clear: the pregnant woman, at least in the states where there is no legislation on the matter, is automatically considered the mother of the child she gestated, without considering the life plan of these women. Once the child is born, the authorities will deny its registration under the name of the intended parents. Only through a comprehensive legislation, it will be possible to guarantee a fair resolution for all persons involved, avoiding situations of re-victimization.
This situation reflects the legal antinomy in the practice of surrogate pregnancy from the perspective of human rights and current civil legislation. As a result, the legal system is incapable of resolving this contradiction effectively, which generates an atmosphere of legal insecurity for all those involved, especially for pregnant women. The lack of clear federal legislation on surrogacy and filiation in these cases leaves local authorities with the responsibility of interpreting the laws, which leads to contradictory decisions and an unequal application of reproductive rights.
Thus, the lack of a uniform federal legal framework perpetuates conditions of uncertainty and risk, which impede the full exercise of women’s reproductive autonomy in Mexico.
5. Comparison between Spain and Mexico: convergence of effects on the lives of pregnant women.
Having moved beyond the individual analysis of the legal frameworks of Spain and Mexico, this section proposes a comparative reading to identify structural convergences in the way in which both regulations affect pregnant women.
Despite their normative differences, the legal-political models of Spain and Mexico regarding gestational surrogacy converge on a critical point: the direct impact on the rights, dignity and well-being of pregnant women. This convergence is not theoretical, but tangible, and is manifested in multiple dimensions of the daily lives of those who participate in gestational surrogacy processes.
In the case of Spain, absolute prohibitionism makes the figure of the pregnant woman completely invisible, based on the premise that any participation in this type of arrangement implies an unacceptable form of objectification. This paternalistic logic denies the possibility of a woman acting with agency and informed consent, and blocks the very existence of safe legal spaces for those who wish to exercise their reproductive autonomy through gestational surrogacy.
In Mexico, the absence of clear federal legislation on surrogacy generates a particularly harmful effect for pregnant women: the automatic attribution of legal maternity, based on the presumption derived from childbirth, even when there is a valid contract in which the procreational will is expressed as a determining element of filiation. This legal imposition ignores their informed consent and obliges them to assume legal responsibilities inherent to maternity -such as parental authority, food obligations or the exercise of parental rights- that they do not want and that do not correspond to their life plan. It also makes it difficult for them to legally disassociate themselves from the child they have conceived, which can lead to lengthy and emotionally costly legal proceedings to free themselves from an imposed maternity. In these cases, the legal system not only ignores the autonomy of the pregnant woman, but also invades her legal sphere by imposing legal ties on her without voluntary support, in open contradiction with the principles of reproductive freedom and informed consent.
In both cases, the consequence is the same: pregnant women are treated as subjects lacking full legal capacity, whose decision to participate in a surrogacy process is annulled or ignored by the legal system. While in Spain they are denied access from a logic of prohibition “for their own good“, in Mexico they are left to their own devices in an environment of regulatory ambiguity that exposes them to institutional violence and revictimization.
Therefore, although the legal path followed by both countries is different, the final effect is convergent: a structural violation of women’s right to decide about their bodies and their reproductive projects, in clear contradiction with the international commitments acquired by both States. This convergence of effects reinforces the urgency of building regulatory frameworks that, without prejudice or paternalism, recognize the autonomy, consent and legal capacity of pregnant women.
6. Conclusions
From the analysis of the international commitments assumed by Spain and Mexico, as well as from the study of their respective legal frameworks and the existing normative contradictions, it is concluded that the legal frameworks of Spain and Mexico in relation to surrogacy reveal two opposing normative models, but both equally incompatible with the international commitments assumed under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). On the one hand, Spain adopts an absolute prohibitionism that blocks any form of surrogacy, even when performed abroad. On the other hand, Mexico faces a legal vacuum at the federal level that, despite the jurisprudential advances of the Supreme Court of Justice of the Nation, still generates uncertainty and normative inequality for women.
Despite their structural differences, both models converge in the same result: the violation of women’s reproductive rights, particularly those who participate or wish to participate as pregnant women. In Spain, the prohibitive regime reinforces a paternalistic approach that presumes women’s inability to make autonomous decisions about their bodies and reproductive ties. In Mexico, the lack of comprehensive federal legislation allows the persistence of unregulated practices, legal insecurity and the imposition of legal maternity on pregnant women, even when they have expressly and formally expressed their desire not to assume it and only assume the role of an auxiliary person in the expansion of a family.
From a human rights perspective, both countries fail in their duty to guarantee women’s reproductive autonomy, equality and dignity. While the Spanish model makes them legally invisible under the prohibition, the Mexican model exposes them to underhanded forms of structural violence by normative omission. In neither context are women fully recognized as subjects of law capable of consenting, deciding and exercising control over their bodies and reproductive decisions.
Therefore, silence and prohibition are not neutral positions: they are active forms of institutionalized discrimination. Legislating from fear, stigma or prejudice perpetuates a system that ignores the diversity of reproductive experiences and denies women the right to participate, in conditions of freedom and safety, in collaborative reproductive processes.
The answer must be clear and urgent: the legal frameworks that make invisible, punish or unprotect pregnant women must be overcome. The debate on surrogacy cannot continue to revolve around prohibition or emptiness, but must focus on how to guarantee dignity, freedom and reproductive justice for all women, without exception.
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