Permissions of art. 49 TRLEBEP in cases of surrogate gestation or by substitution.

The question raised is about which conciliation permits are provided for in Art. 49 TRLEBEP should be granted in cases of surrogate gestation or by substitution.

To this end, it is necessary to analyze the provisions of the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of October 30, (hereinafter, TRLEBEP), as well as the Civil Code (CC, hereinafter) and regulations and jurisprudence in matters of filiation. And this is because this is a matter for whose analysis it is not enough to resort to rules of administrative law, since the factual situation for the application of the planned permits needs a legal interpretation that exceeds the scope of this regulation, so it must be integrated with the rules of civil law, according to the supplementary nature of the same established in article 4.3 CC, since there is no definition in the field of administrative law of concepts such as adoption or a regulation relating to filiation.

Thus, in particular, it is appropriate to analyze the application of the following permissions of art. 49 TRLEBEP for those civil servants who use the figure commonly known as surrogate gestation or surrogate gestation:

(a) Birth permit for the biological mother

(b) Permission for adoption, for guardianship for the purpose of adoption, or for placement and for prior movement of the parents to the country of origin of the adopted child, in cases of adoption or international placement

(c) Permission of the parent other than the biological mother by birth, foster care or adoption of a child

To do this, it must start from the concept of surrogate gestation, also called surrogate gestation. This is the gestation agreed by a contract, with or without price, in which a woman renounces the maternal filiation of the future child, in favor of the contractor or a third party.

Law 14/2006, of May 26, on Assisted Human Reproduction Techniques explicitly prohibits surrogate pregnancy in Spain. Specifically, its Article 10 states that:

“The contract for which the gestation is agreed, with or without price, by a woman who renounces maternal filiation in favour of the contractor or a third party, shall be null and void. The filiation of children born by surrogate gestation will be determined by childbirth.”

For its part, Article 108 CC provides that “filiation may take place by nature and by adoption. Filiation by nature can be matrimonial and not matrimonial. It is matrimonial when the father and mother are married to each other. Matrimonial and non-matrimonial filiation, as well as adoptive filiation, have the same effects, in accordance with the provisions of this Code.” Thus, the possibility of filiation for surrogate motherhood is not established, and the possible action to claim paternity with respect to the biological father, in accordance with the general rules, is protected.

Therefore, we find a contract that is null and void but that has deployed its effects, and the filiation of the gestated baby is intended.

In this sense, based on what is included in articles such as the 113 CC (which points out that “filiation is accredited by the registration in the Civil Registry, by the document or sentence that legally determines it, by the presumption of matrimonial paternity and, in the absence of the above means, by the possession of state. The admission of evidence other than registration shall be subject to the provisions of the Civil Registration Act (…)”) or the 176.1 CC (which explains that “Adoption shall be constituted by judicial decision…”), and the general rules of legal determination of filiation established in the arts. 764 ff of the Civil Procedure Law (the Spanish courts being competent), the solutions offered by the regulations and jurisprudence must be used.

The Supreme Court, in its judgment of March 31, 2022, No. 277/2022 (and later, such as No. 496/2025, No. 1626/2024), has been arguing that the only possibility is that, in the case of biological paternity with surrogate motherhood, filiation is carried out by claim and in the case of the non-biological father or mother, after the resignation of the pregnant mother, adoption of the child is carried out through the procedures legally established for this purpose.

For its part, the Instruction of April 28, 2025, of the General Directorate of Legal Security and Public Faith, on updating the registration regime for the filiation of births through surrogate gestation, takes up this line of jurisprudence and expressly repeals the Instructions of October 5, 2010 and February 18, 2019 of the General Directorate of Registries and Notaries, on the registration regime for the filiation of births through surrogate gestation, which established other possibilities. Below are the guidelines that state:

“Second.

In no case shall a foreign registration certificate, or a simple statement accompanied by a medical certificate concerning the birth of the child, or a final judgment of the judicial authorities of the country concerned, be admitted by the persons in charge of the Civil Registers, including the Consular Civil Registers, as a title suitable for the registration of the birth and filiation of those born by surrogate gestation.

(…)

Fourth.

Applicants will be able to obtain from the local authorities, if applicable, the passport and corresponding permits so that minors can travel to Spain and, once here, the determination of filiation will be made through the ordinary means provided in the Spanish legislation: biological filiation, where appropriate, with respect to one of the parents of intention and subsequent adoptive filiation when the existence of a family nucleus with sufficient guarantees is proven.”

Therefore, these are the legal solutions for determining the filiation of the child born by substitution (“biological filiation, if any, in respect of one of the parents of intention and subsequent adoptive filiation when the existence of a family nucleus with sufficient guarantees is proved”), the type of permit to be granted will depend on them, depending on whether they are subsumed in one or the other case.

• First, article 49.a) of the TRLEBEP regulates the birth permit for the biological mother, which “will last for sixteen weeks, of which the immediate six weeks after childbirth will in any case be mandatory and uninterrupted rest”.

From the literal tenor of the precept it follows that this permission can only be enjoyed by the biological mother, that is, the person has gestated and has given birth to the child. In addition, article 10.2 of Law 14/2006 states that the filiation of minors born through surrogate gestation will be determined by childbirth, that is, taking into consideration the mother who has given birth and not the mother who has given birth.

Thus, even if there were a document in which persons other than the pregnant person who gave birth were listed as the biological mother of the child, this could not give rise to the enjoyment of the permit for the biological mother in case of birth by gestation by substitution, since the causative event that would motivate the granting of the permit of article 49 (a) of the TRLEBEP does not exist.

• On the other hand, Article 49.b) of the TRLEBEP regulates the permit for adoption, which “It will last for sixteen weeks. Six weeks must be enjoyed full-time on a mandatory and uninterrupted basis immediately after the court decision establishing the adoption.”.

In the same way, from the literal interpretation of this precept, it follows that the causative act that gives rise to the right of public officials to enjoy it is the adoption of the child through the corresponding judicial decision by which the adoption is constituted.

According to the Instruction of April 28, 2025, of the General Directorate of Legal Security and Public Faith, one of the ways to obtain the filiation will be through the “Subsequent adoptive filiation when the existence of a family nucleus with sufficient guarantees is proven”.

Thus, if, in the case of surrogate gestation, there is a judicial decision by which the adoption is constituted, the permission of article 49.b) of the TRLEBEP shall be granted.

• Article 49.b) of the TRLEBEP also specifies a permit in case of international adoption stating that “If it is necessary to move the parents to the country of origin of the adopted child, in cases of international adoption (…), they will also be entitled to a leave of up to two months, receiving during this period only the basic remuneration”.

In view of what is stated in both the STS and the fourth criterion of the Instruction mentioned, surrogate gestation is not an international adoption.

Thus, in accordance with the provisions of art. 1.2 of Law 54/2007, of 28 December, on International Adoption, “international adoption means a child considered adoptable by the competent foreign authority and habitually resident abroad, who is or will be moved to Spain by adopters habitually resident in Spain, either after adoption in the State of origin, or for the purpose of constituting such adoption in Spain.”

However, the fourth criterion of the above-mentioned Instruction specifies, as has been pointed out, that adoption begins once the minor is in Spain, without the recognition of the effects of foreign judicial decisions.

Therefore, it is understood that we are not dealing with the case of international adoption, and therefore the recognition of the permit for international adoption would not be appropriate.

• Finally, article 49.c) of the TRLEBEP recognizes the permission of the parent other than the biological mother by birth.

Permission under Article 49(c) is granted in cases of filiation of the parent other than the biological mother by birth. In accordance with the aforementioned Instruction of April 28, 2025, of the General Directorate of Legal Security and Public Faith, beyond adoptive filiation, only biological filiation may be possible, where appropriate, with respect to any of the parents of intention.

Thus, article 10.3 of Law 14/2006 provides that, in case of birth by surrogate gestation, “The possible action to claim paternity in respect of the biological father, in accordance with the general rules, is safeguarded.”

In this way, the permission of the parent other than the biological mother by birth will be recognized once the parent-child bond between the parent and the child has been recognized, as well as the registration of such bond in the Registry in accordance with the general rules.

In short, in the event that the parent other than the biological mother is indeed the biological parent of the child and, according to the jurisprudential doctrine of the Supreme Court, this is recorded in the birth registration, the causative event occurs that would allow the enjoyment of the permit set forth in article 49.c) of the TRLEBEP, that is, the birth of the child.

In conclusion, the recognition of the permits contained in article 49 of the TRLEBEP will depend on the formula chosen to determine the filiation of the child, and the time from which the corresponding permit begins to be enjoyed, will depend on the causative fact that gives rise to it in accordance with the provisions of the aforementioned precept.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.