Surrogacy in Spain: Vindication of the Mater Semper Certa Est Rule

Civil law jurisdictions have more than others effectively resisted the commodification of gestation capacities, relying on the old Roman aphorism mater semper certa est ('it is always certain who the mother is'). Faced with the complexities of stratified reproduction [Anagnost, A., 2004. Maternal labor in transnational circuits. In: J. S. Taylor, L. L. Layne, and D. F. Wozniak, eds. Consuming motherhood. New Brunswick, NJ: Rutgers University Press, 139-167], the mater semper certa est rule allows for the birth mother to be considered as the legal mother. Thus, the gestational model of motherhood, that rules in countries such as Spain, France, and Italy, acts as a deterrent against prospective parents' entering into a surrogacy contract, both domestically as well as at the international level. This paper offers a vindication of the Roman aphorism as a fair principle to protect birth mothers and their children from the abuses of reproductive market forces.