A new instruction from the Spanish Ministry of Justice has confirmed that unmarried lesbian couples can register their newborn children directly from hospitals, without needing to be legally united by marriage.
This regulatory adjustment seeks to resolve the doubts that had arisen after the entry into force of the trans law in 2023, which already recognized this right, but had not been clearly reflected in all administrative protocols, especially in health centers. The text will be published in the Official State Gazette (BOE), and promises greater legal security in a historically unequal terrain.
A conflict that was not such
Although the trans law had already eliminated the requirement of marriage so that both mothers could appear as parents, in practice there were still gaps. Some administrative units continued to refer to the Assisted Reproduction Law of 2006, which required the marriage bond so that the non-pregnant mother could recognize parentage without having to go through an adoption process.
This normative contradiction caused confusion, and even discrimination. But, according to the new document, there is not really a collision of laws: the 2023 regulations do not replace the previous one, but rather expand it. That is, what now applies to married couples also extends to those who are not.
What changes now?
The new instruction explicitly modifies the procedure for electronic communication of births from hospitals. From now on, when the non-pregnant mother signs the corresponding form, it will automatically be understood that she is recognizing the parentage of the baby, as established in article 120.1 of the Civil Code.
In addition, the parts of the old 2015 instruction that may conflict with this new legislation are annulled. This is intended to avoid erroneous interpretations by hospitals and civil registries, which have sometimes placed unjustified obstacles on these families.
A historical debt to lesbian mothers
Until very recently, female couples who wanted to start a family faced legal obstacles that heterosexual couples simply did not have. If they were not married, the non-pregnant mother had to initiate an adoption process to be legally recognized as a parent. A process that included interviews, psychosocial reports and even supervision by the Prosecutor’s Office.
These types of demands did not apply to heterosexual men, who could have their paternity recognized simply with a declaration, regardless of whether they were married or not. The inequality was evident.
And it is not a new phenomenon. When equal marriage was approved in 2005, parentage between lesbian mothers was left out of the reform of the Civil Code. The result was that, for years, many mothers had two different family books: one as a married couple and another for the surrogate mother and her baby. A legal paradox that required the other mother to adopt her child so that she would be recognized as such.
This move by the Ministry of Justice responds to an urgent need for equity and legal coherence. Allowing unmarried lesbian mothers to enroll their children directly in hospitals is a fundamental step toward real equality in parental rights.
But it also invites us to maintain attention. Legal equality does not always guarantee practical equality. Will this instruction be enough to change what happens every day in hospitals and civil registries? Hopefully. Although it remains to be seen how it will be applied in real life.
