Johanna Westeson - The ICHRP

woman have the right to marry according to the provisions in this Code. Marriage shall have the
same requisites and effects when both parties are of the same or of different sex. 339
Other changes in the Code are merely cosmetic: they replace ‘husband and wife’ with
‘spouse,’ ‘mother and father’ with ‘parents,’ etc. Married same-sex couples in Spain now
have exactly the same rights and obligations as opposite-sex married couples, including the
right to jointly apply for the adoption of children. 340 According to Spanish Ministry of
Justice Resolution 2005/21656, 341 it is constitutional under the new law for a Spanish
citizen to marry a foreign citizen of the same sex, or for two foreigners of the same sex to
marry, if they reside in Spain, regardless of whether same-sex marriage is legal in their
home country.
The constitutionality of the law has been questioned before the Constitutional Court by the
opposition party, Partido Popular. As of December 1, 2009, the case is pending.
Adoption is open for single persons without any special requirements in the law. According
to the wording of Article 175 in the Civil Code joint adoption is only allowed for married
couples, whether opposite-sex or same-sex. However, Law 21/1987 342 establishes that
when the law for adoption purposes mentions ‘spouses,’ these provisions will also be
applicable to a man and a woman who live together in a couple on a permanent basis,
analogous to that of a married couple. In the autonomous regions of Navarra, Catalonia,
and Aragón, this provision has opened up the possibility also for non-married same-sex
couples to adopt. 343
Spain also has a non-discriminatory regulation on artificial reproduction technologies.
According to Act 14/2006, of 26 May, on techniques of assisted human reproduction, 344
[a]ny woman over 18 years and with full legal capacity can be the recipient or user of the
techniques regulated in this Act, for as long as she freely, consciously and expressly has
submitted her written consent to the procedure. The woman may be the user or recipient of
the techniques regulated in this Act independent of her civil status or sexual orientation. (Art
6(1)) 345
Thus, single or partnered lesbian women have access to both assisted insemination and
IVF, with their own or donated eggs. Another interesting detail in the Spanish law, from a
rights perspective, is that it especially calls for disability access to the centers that get
authorized to perform the services in question.
The original version of the law did not consider the legal relationship between the samesex
partner of a woman undergoing the procedure and the child born of that procedure. In
2007, Law 3/2007, of 15 March, regulating the correction of the appearance in registries of
339 Translation is my own.
340 Regulated through Law 13/2005, where the possibility to take part in adoption procedures for same-sex
couples is mentioned in the preamble, and, consequently, Article 175 of the Spanish Civil Code, as amended.
341 Ministerio de Justicia (BOE 313 de 31/12/2005), Referencia 2005/21656.
342 Law 21/1987, of 11 November, through which certain articvles in the Civil Code and the Civil Procedural
Code are modified in the area of adoption.
343 According to Ana Llanza i Sicart and Susana Navas Navaro, Matrimonio homosexual y adopción.
Perspectiva nacional y internacional, Madrid, 2006, p. 210.
344 Only in Spanish.
345 Translation is my own.
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