A week ago, Ana Obregón became the protagonist of the media and political debate.
The news that she had resorted to a surrogate in the United States to become a mother again after the death of her son, Aless Lequio, was the most commented on social networks, on the front pages of newspapers and even in The deputies congress.
When the controversy surrounding this practice seemed to have calmed down, a new exclusive from the magazine
Hello!
has reignited the debate: the actress said that the girl born by surrogate mother is her granddaughter and daughter of Aless, who died in May 2020 from cancer.
Obregón's announcement has generated new doubts and ethical and legal discussions around a practice prohibited in Spain: how can the girl be her granddaughter?
Is it possible to resort to artificial insemination using the genetic material of a deceased person?
And according to what criteria?
Why does Ana Obregón say that the girl she had through a surrogate in the US is her granddaughter?
The actress explains, in an interview published on Tuesday night in the magazine
Hello!
, that the "last will" of her son Aless de ella before dying from cancer, in May 2020, was to "bring a son of hers into the world."
She has been able to fulfill that wish by resorting to a surrogate in Florida, where it is legal, since this practice is prohibited in Spain.
Before starting chemotherapy treatment, the young man froze sperm samples that were kept in the United States.
This is a common practice for cancer patients: doctors recommend that men freeze semen and women freeze eggs, in case the treatment to cure cancer affects their fertility.
Is a father's consent necessary to donate sperm before dying?
Yes. In Spain it has a time limit and is regulated by the assisted reproduction law of 2006, which establishes that a man can give his consent for "his wife" to use his sperm "within 12 months after his death".
"Such a generation will produce the legal effects that derive from the matrimonial affiliation", says section 2 of its article 9. This can also be applied to couples who are not married.
In no case can it be used outside this area, nor for a surrogate, which is prohibited in Spain.
The case of Aless Lequio is different, since Spanish law does not apply, as the entire process is carried out in the United States.
In the State of Florida, where Ana Obregón went, the laws allow even a person who is not the wife or stable partner of the deceased donor to use his semen, as long as there is something that demonstrates that desire and is authorized by a judge.
Is this the first time such a case has occurred in the United States?
No. Although it is very rare, there are precedents for parents who have used the sperm of a deceased child to have a grandchild through a surrogate.
A wealthy British couple did it in 2018: two days after the death of their son in a motorbike accident, the couple, who "desperately wanted an heir", arranged for a doctor to extract and freeze a semen sample from the deceased.
However, they had to fly to the United States, in California, to start the process, since British law requires the written consent of the donor, which in this case did not exist.
A year later, another family managed to do the same and set a precedent in US law.
Peter Zhu's parents
postmortem.
Also in this case, Zhu had left nothing in writing about the use of his genetic material for procreation after death.
However, her parents testified that on more than one occasion she had expressed her wish to have several children, and a US Supreme Court judge ended up granting the family the possibility of conceiving a grandchild through a surrogate.
Did Aless Lequio consent to the posthumous use of his semen?
In the interview to
Hello!
, Ana Obregón says that, a week before she died, Aless told her and her father “by word” that she wanted to bring a child into the world, and that she did so by means of a “holograph will”.
It should be clarified that a holographic will cannot be given orally, but is, according to the Civil Code, the one that is written "in the testator's own handwriting".
In the case of Aless Lequio, what her mother says in
Hello!,
It is more like an oral will, which is also included in this code, specifically in its article 700. It can be done in four cases: in imminent danger of death, in the event of an epidemic, the military will in the event of battle and the maritime in case of shipwreck.
And you need “five suitable witnesses without the need for a notary”.
The contradiction comes later, when Ana Obregón also speaks of "a document that exists and is legal", without further elaborating on what typology.
In any case, it is in the United States where it has had to be evaluated how the deceased gave his consent or expressed his wish and if it is valid there, since in Spain it would not be possible regardless of any will that he had shown, by not complying with the requirements of the assisted reproduction law.
For the purposes of Spanish justice, is Obregón a mother or a grandmother?
As with all questions, we must start from the assumption that in Spain all this procedure would not be possible, since surrogates are prohibited.
So legally you will have the link that appears on the documentation that comes from the United States.
If it states that she is a mother, in Spain she will be legally the mother, although biologically she is a grandmother, since the identity of the donors does not have to be specified.
What cannot happen is that Obregón is recognized as the girl's mother and grandmother at the same time, not even through adoption.
Article 175 of the Civil Code establishes that a descendant or a relative in the second degree of the collateral line by consanguinity or affinity cannot be adopted.
A grandmother (or uncle) could be the legal guardian of her grandchild, but not legally become her mother.
Ana Obregón during the presentation of the Aless Lequio Foundation in Madrid in February.
Above left, the cover of the '¡Hola!' magazine. Aldara Zarraoa (Getty Images)
Is Ana Obregón going to have problems bringing the girl to Spain?
The United States is one of the most guaranteeing countries in terms of surrogate regulation.
The laws of the States where this practice is regularized are governed by a judicial mandate that determines who the parents of the baby are, even before birth, when the contract is signed with the woman who will give birth.
Once Obregón obtains the girl's US passport —where she will appear as mother, according to what he has explained to
¡Hola!
— may proceed to register the baby in the civil registry of the Spanish consulate in Florida.
She can also decide to travel only with her passport and do the process directly in a civil registry in Spain.
Although it is not an automatic process, the vast majority of applications for the registration of babies arriving from the United States are resolved favorably.
In fact, only 2% of these requests have been denied in the last 11 years.
“It is a complex case, but what is in order is the sentence of the United States judge, who in this case seems to say that Ana Obregón is the mother.
She is above everything.
With this document in her hands, she will be able to register the girl in Spain and thus grant her dual nationality, ”explains Martín Corera, a specialist in Registry Law.
Is there a new political debate?
The news that Ana Obregón had resorted to a surrogate to become a mother again set fire to the political debate.
On the one hand, it focused last week on the condemnation of this practice —the Minister of Equality, Irene Montero, described surrogacy as “violence against women”, as already included in the reform of the abortion law— ;
on the other, in its possible regulation, always in the altruistic version, as advocated by Ciudadanos, and in a more vague way, the PP, which says it is open to studying it.
On Wednesday, the reactions from the political world have been more moderate.
The president of the national PP, Alberto Núñez Feijóo, has limited himself to drawing attention to the "legal vacuum" that exists in Spain.
The Defense Minister, Margarita Robles,
He asked to "respect the personal reasons" that have led the actress to make this decision and has demanded that no one be publicly judged without knowing their reasons, although he added that in Spain "the legislation is very clear against surrogacy." .
In this line, the Minister of Social Rights, Ione Belarra, expressed herself, who also stressed the importance of "thinking about the people who are behind" this practice and live in a "vulnerable situation", referring to the woman who gave birth the girl and, above all, the girl herself.
About insemination
who also stressed the importance of "thinking about the people who are behind" this practice and live in a "vulnerable situation", referring to the woman who gave birth to the girl and, above all, the girl herself.
About insemination
who also stressed the importance of "thinking about the people who are behind" this practice and live in a "vulnerable situation", referring to the woman who gave birth to the girl and, above all, the girl herself.
About insemination
post mortem
, affirmed that "you cannot legislate on the fly."
"I would like to hear many opinions before issuing mine, first you have to know and think," she stressed.
How does Obregón's age influence from an ethical and legal point of view?
Ana Obregón's age, which could limit her ability to care for the girl until she is self-sufficient, has been at the center of the debate from the very beginning.
“Whether it is really the mother or the grandmother of the baby is not relevant [for the care], the biggest difficulty is still the age difference.
She is a very old person and it is necessary to see if she is going to be physically and biologically capable of meeting the demands of the minor throughout her life ”, point out sources from the General Directorate for Children, under the Ministry of Social rights.
In Spain, the law does not limit the age at which a person can be a mother or father through assisted reproduction (although, again, there could be no surrogacy).
The norm that regulates it says:
"Any woman over 18 years of age and with full capacity to act may be a recipient or user of the techniques regulated in this law, provided that she has given her written consent to their use freely, consciously and expressly."
Social security finances treatments up to 40 years of age, something that communities like Madrid have raised (in his case, up to 45).
The National Commission for Assisted Reproduction decided to set the limit at 50, something that is not mandatory, but that practically all clinics respect, according to Rocío Núñez Calonge, scientific director of the International Reproduction Unit.
“A pregnancy beyond that age is a serious problem,” she points out.
Social security finances treatments up to 40 years of age, something that communities like Madrid have raised (in his case, up to 45).
The National Commission for Assisted Reproduction decided to set the limit at 50, something that is not mandatory, but that practically all clinics respect, according to Rocío Núñez Calonge, scientific director of the International Reproduction Unit.
“A pregnancy beyond that age is a serious problem,” she points out.
Social security finances treatments up to 40 years of age, something that communities like Madrid have raised (in his case, up to 45).
The National Commission for Assisted Reproduction decided to set the limit at 50, something that is not mandatory, but that practically all clinics respect, according to Rocío Núñez Calonge, scientific director of the International Reproduction Unit.
“A pregnancy beyond that age is a serious problem,” she points out.
scientific director of the International Reproduction Unit.
“A pregnancy beyond that age is a serious problem,” she points out.
scientific director of the International Reproduction Unit.
“A pregnancy beyond that age is a serious problem,” she points out.
Are there bioethical dilemmas around fame and the mourning that Ana Obregón is experiencing?
The duel that the actress was going through when the process began has been another of the great sources of controversy.
Begoña Román, professor of Bioethics at the University of Barcelona and member of the Bioethics Committee of Catalonia, believes that the fact that Obregón is the minor's biological grandmother does not alter this dynamic.
“Mrs. Obregón is going through a very big duel, which she is supplying with this girl.
She comes to fill a void, and it doesn't matter if it's that of mother or grandmother.
After all, the role of this lady remains the same: that of the main caregiver ”, but with a lower life expectancy due to her age, she explains.
In addition, the fame of the actress has stripped the girl of her right to privacy.
“This girl is going to discover the truth about how she came into the world on the cover of a gossip magazine.
Everyone will know before she does.