Miguel Bosé, with his two biological children at the premiere of a movie in 2019.ENT / SplashNews.com / GTRES
The recent ruling of a Madrid court on the four children of Miguel Bosé and his ex-partner, Nacho Palau, opens a new debate about surrogate bellies, a practice that is not legal in Spain but to which hundreds are welcomed every year Spanish couples: What happens to the children when the couple separates?
Can these minors be guaranteed to live as siblings?
This is an exceptional case both because of the singer and actor's fame and because of the path they took to legalize the situation of children in Spain.
Miguel Bosé and Nacho Palau lived together for more than 20 years without being known;
it only transpired that they were together when they announced their separation.
They had four children born in the United States by surrogacy or surrogacy, a practice that implies that a woman becomes pregnant and gestates for third parties.
Two of the minors now live with Miguel Bosé, their biological father, in Mexico.
The other two twins are biological children of Nacho Palau and are in Spain with the latter, who has started a legal fight to try to get the four children to live as brothers again, as they have spent almost eight of their 10 years of life .
The court has just rejected the lawsuit in which Palau requested the filiation [to establish the kinship relationship] of the four minors so that they are considered brothers in the eyes of the law.
The sentence is particular because, on the one hand, it considers it proven that the ex-partner had the purpose of "having children to found a single family in which the children would be siblings and both would be parents," according to the summary provided by the Ortolá Dinbier office that represents Palau.
But at the same time, the ruling understands that the current Spanish legal system "does not allow the requested filiation declaration to be formally made," that is, the four children cannot be recognized as siblings and children of both parents.
This newspaper has not had access to the ruling, but judicial sources explain that the legal basis is based on article 10 of the Assisted Reproduction Law, which establishes that surrogacy contracts are void in Spain and that the parentage of the children it is determined by delivery.
That is the usual reality in Spain, but the cases of surrogacy have been opening other paths that go beyond the principle that mother is the one to stop.
Every year, hundreds of Spanish couples go to third countries where access to women who rent their womb is legal and they return with children who end up registered as children of both.
The level of difficulty to obtain it varies according to the country to which you go and the type of document that that place issues to be able to regularize them in Spain.
A contract in the United States
Bosé and Palau did it in the United States, the most expensive destination - the contract with an agency to access a surrogate is around 120,000 euros - and one of the countries that openly allows pregnant women to pay.
To be able to return with the minors and register them in the registry as their own children, a court ruling issued by the United States is needed, which states that the mother was not coerced and there is no risk of child trafficking.
That sentence can include both as parents both in the case of heterosexual couples and if they are couples formed by two men or two women.
In the case of the singer and his ex-partner each appeared as the father of two twins.
Ana Miramontes, a lawyer specializing in surrogacy, points out that, from a legal point of view, everything seems to point to the desire of Bosé and Palau to do it separately: "It is a case of two single-parent families living together," she considers.
“In California, the two could have been legally parents from the first moment and for some reason they decided to start a surrogacy procedure, each one of them.
These children have been brothers in fact but not in law ”.
The point is that being brothers in fact does not count before the law.
It is not possible to acquire that filiation or recognition of kinship by coexistence.
In Spain, children are children due to biological ties or after being adopted, although the adopter cannot have more than 45 years of age difference with the minor, as in the case of Bosé.
So by not registering both as parents of each child in California, if they had changed their opinion afterwards, they would not have been able to opt for this second route.
Nor can they avail themselves of the third way existing in Spain, which is based on the Assisted Reproduction Law.
The latter was opened in 2013, when the Supreme Court recognized the motherhood of a lesbian who had separated from her partner, the biological mother of her daughters.
Both of them underwent in vitro fertilization techniques and signed an informed consent.
The court understood that this consent was sufficient proof of the will of both to conceive a child.
This path cannot be used in a case of surrogacy, which are neither legal in Spain nor considered an assisted reproductive technique.
Delete the pregnant woman and the spouse
Bosé's two biological children now live 9,000 kilometers from his ex-partner's biological children.
The lawyer José Luis Cembrano, member of the Spanish Association of Family Lawyers (AEAFA), does not see legal options to avoid this separation if they are not brothers before the law, because there is no international legislation that persecutes surrogacy.
The four children will be able to continue seeing each other, however, thanks to what is known as the figure of the relative: “The civil code recognizes the right to visit of grandparents or relatives, and it also usually happens in couples who have been living with children for a long time of the other, ”explains Cembrano.
They will meet on vacation, as approved by the court and the ex-partner had already agreed in 2019.
But there will not be a Bosé pension for the children who are with Palau, nor will the latter be able to make future decisions about those who live with Bosé.
The singer's ex-partner is willing to sue all the way to the Supreme Court, a path that will take two or three years at best.
Cembrano points to a last option: adoption for adults.
They could be registered as siblings when they turn 18 if they so wish by then, whether Miguel Bosé wants it or not.
A judicial sentence suitable for all couples
In some territories of the United States and Canada, heterosexual couples, couples of two men or of two women can go without distinction to contract a surrogate.
There they get a court ruling that allows the children to be registered as children of both in the Spanish consulate.
The precedent for same-sex couples was set by two men who came to register their twins in late 2008 at the Los Angeles Consulate.
The consul refused the registration because the two could not be biological parents.
They appealed to the General Directorate of Registries and Notaries and were granted it.
Following this case, the management drew up an instruction in 2010 that has been the one that has opened the door to regularize the situation of children born by surrogacy.
The Spanish instruction is in line with the doctrine developed by the European Court of Human Rights.
If a minor considers himself the child of parents in one country, he or she does not change parents or stop having them in another: “They have the right to preserve their identity across borders and this prevails even over a surrogacy contract”, explains Javier Carrascosa, Professor of Private International Law at the University of Murcia. The situation is different when couples go to Ukraine.
It is the cheapest destination (between 40,000 and 60,000 euros), and only allows surrogacy to married heterosexual couples.
Babies cannot be registered as Spanish at the consulate.
Being stateless, Ukraine gives them nationality and they travel as Ukrainians to Spain.
Once here, by judicial means they request the recognition of the father by DNA and Spanish nationality and, either in the same act or in a second process, the mother adopts the baby.