Surrogacy in Germany - legislation
In Germany, surrogacy is regulated by the Embryo Protection Act (EschG), passed in 1991. This law restricts the use of reproductive technologies for purposes that could lead to surrogacy by making it illegal to implant an embryo in a woman who has no intention of keeping the child with her after birth (surrogate mother).
According to section 1, paragraph 1, No. 7 of the Act, it is a criminal offense to carry out surrogacy operations, with penalties ranging from three to five years' imprisonment for the medical practitioner who carries it out. This severity is primarily due to the fact that German law considers surrogacy to be a violation of ethical and moral principles.
For the prospective parents and the prospective surrogate mother, the personal disposition in section 1, paragraph 3, paras. 1 and 2 ESchG. The surrogate mother and the intended parents do not commit a criminal offense under the Embryo Protection Act (section 1 paragraph 3 no. 2 ESchG and section 14 b paragraph 3 AdVermiG).
Thus, the prohibition is primarily aimed at doctors and scientists because of the requirement to meet certain professional qualifications. Doctors can also sometimes be penalized for complicity (section 25, paragraph 2, section 27, paragraph 1 of the Penal Code) as well as for incitement (section 26 of the Penal Code).
Taking the side of the surrogate mother, the law prohibits any kind of commercial activity in this field. Any contract between the genetic parents and the surrogate mother is contrary to the morals of society and is not legally enforceable in Germany according to Section 138 of the German Civil Code (BGB).
Section 13 of the Adoption Act (AdVermiG) prohibits the use of surrogate mothers. Pursuant to Section 14b, paragraphs 1 and 2 of the AdVermiG, any person who implants an embryo of a surrogate or receives (or accepts) a promise of financial gain from the use of a surrogate is liable to prosecution.
In addition, the provisions of §13a-13d of the "Surrogacy Intermediary Prohibition Act" define surrogacy and describe the relationship between the surrogate mother and the child's prospective parents, and establish a prohibition on the submission of advertisements to the media.
Violation of the legal provisions prohibiting the promotion of surrogacy is criminalized by imprisonment of up to one year or a fine (§ 14b AdVermiG).
However, Section 236 of the Criminal Code does not apply to the foreign offenses listed in Section 5 and 6 of the German Criminal Code. Thus, the provision does not apply to surrogacy that has been carried out abroad in Germany.
In vitro fertilization (IVF), on the other hand, is permitted in Germany and is regulated by the Embryo Protection Act (Embryonenschutzgesetz - EschG), which imposes strict restrictions on the handling of embryos in the IVF process. The Embryo Protection Act prohibits the creation of embryos for any purpose other than direct insertion into the uterus of the woman from whom the eggs were taken, thus excluding the use of surrogate mothers. In addition, the law prohibits any manipulation of embryos that is not intended to produce a pregnancy in the woman who provided the eggs.
IVF is authorized only for the treatment of infertility in married couples or couples in stable partnerships. The law also prohibits the creation of more embryos than can be used in one treatment cycle and places restrictions on egg and sperm donation.
According to the Sperm Donation Act in Germany, as of July 1, 2018, all information about the sperm donor is included in a special registry, where, upon reaching the age of 16, any child born through ART technology will be able to obtain information about its genetic father (sperm donor). However, this does not give any parental rights to the sperm donor, it simply entitles the person born with the help of ART to know about his or her ancestry.
According to German law, the following options are available to establish paternity status and German citizenship for a child born as a result of surrogacy in a country where it is permitted:
1) A court decision abroad and its subsequent recognition in Germany
In countries where surrogacy is legal, the prospective parents - confirmed by official or court decisions - acquire the status of mother and father of the child born by the surrogate mother. In decisions of December 10, 2014, XII ZB 463/13, and decision of September 5, 2018, XII ZB 224/17, the Federal Court of Justice decided that a foreign decision confirming parental status is generally required to recognize biological parents as parents, even under German law. This involves a comprehensive examination of the best interests of the child.
It is not sufficient to simply provide a birth certificate or an entry from the Birth Registration Book.
As far as the mother is concerned, the legal assessment of surrogacy under foreign law differs from German law because paragraph 1591 of the Civil Code is summarized as follows: "The mother of the child is the woman who gave birth to it". The law allows no deviation or interpretation. Thus, the woman who provided her ovum is not legally related to the child born.
According to §108 of the Family Proceedings and Voluntary Jurisdiction Act (FamFG), foreign court decisions on the establishment of parental rights are recognized in Germany. The German Supreme Court has ruled that the German authorities must respect the decisions of foreign authorities regarding the parental rights of German expectant parents, even if surrogacy is not legal in Germany.
However, there is an exception to this rule - the public policy clause (ordre public Vorbehalt) contained in §109 I 4 FamFG makes the recognition of a foreign court decision inadmissible if "the decision would be manifestly incompatible with the basic principles of German law, in particular would be contrary to fundamental rights".
Thus, the German law enforcer needs to determine whether the foreign judgment conflicts with the German legal concept of fairness. It should be borne in mind that the application of the public policy clause to the recognition of foreign judgments should be particularly restrained, since judgments have a certain "guarantee of trustworthiness" such that their disregard has a significant impact on relations between States within the meaning of private international law.
2) Recognition or determination of paternity
According to German law, the genetic father of the desired child can publicly acknowledge his paternity with the consent of the surrogate mother before the birth of the child. If the surrogate is unmarried, it will be possible to recognize the paternity of the biological (genetic, putative) father at the embassy (consulate) according to a specific procedure. There is a special declaration that can be made at the embassy in two different ways: before or after the birth of the child.
In the first case, the alleged father who has a genetic link to the child must legally recognize the child at the German Embassy (Consulate), during the pregnancy of the surrogate mother with the consent of the surrogate mother. This recognition must be publicly confirmed (usually through information sheets on German Embassy/Consulate websites). Once the child is legally recognized by the putative father, who is a German citizen, then the (unborn) child automatically acquires German citizenship after birth.
In the second case, the putative father does the same, but after the birth of the child and also with the personal presence of the surrogate mother at the German Consulate (to obtain her consent). In both cases, it must be clear that the surrogate mother has voluntarily decided to bear the child and transfer custody and all parental rights to the putative father. A hearing is not necessary to prove this, a statement is sufficient.
However, if the surrogate is married, the surrogate's husband is usually named as the father of the child (section 1592 no. 1 BGB). Despite this, the genetic father may try to challenge the existing legal paternity in order to obtain paternity himself through a court order.
Once paternity is recognized and the child's citizenship is established, the future parents will need to obtain the child's passport in order to travel to Germany.
From a legal point of view, parenthood under German law is divided into paternity and maternity. While paternity can be disputed, recognized or established, for maternity the principle "mater semper certa est" applies. According to §1591 BGB, a woman who has given birth to a child is recognized as the mother. Unlike paternity, maternal status cannot be disputed or recognized. It follows that a woman who decides to use the services of a surrogate mother will not be able to become the mother of the child in the legal sense. This is based on the decision of the legislature on the issue of surrogacy in Germany.
In this case, the option of adopting the child applies. However, if the intended parents do not have a genetic link to the child, adoption is complicated. The intendedparents may adopt the child together to preserve the legal position of parents. However, the contract between the intended parents and the surrogate mother, which regulates the granting of appropriate consent for adoption, is invalid under German civil law.
It is for the family court to decide on the adoption. If, as is often the case, the genetic father has also become the legal father of the child, his wife can subsequently adopt "his" child. As a result, the child is considered to be the joint child of the intended parents.
Adoption is allowed only if it is in the best interest of the child. Sections 1741-1772 BGB and sections 186-199 of the Family and Voluntary Proceedings Act (FamFG) have additional rules and requirements regarding adoption and its consequences, as well as regarding the possibility of annulment of an adoption.
This position is reflected in the ECtHR Judgment and Decision of the Federal Supreme Court of Germany (Bundesgerichtshof, BGH) of 20.04.2019, rendered in the case of a child born from a surrogate mother in Ukraine and handed over to a German couple who brought the child to Germany. The origin of the child was established in accordance with German law, defined as applicable law. According to this applicable law, the father of the child was recognized as the man to whom the child was transferred and with whom he is biologically related. The legal mother of the child is the woman who gave birth to the child. She is therefore the one who should be entered in the civil registry. In order to obtain the status of mother, the wife of the child's father had to undergo the adoption procedure provided for by local legislation.
4) Recognition of a foreign birth certificate
According to German paternity law, if a child returns to Germany with his (presumed) parents immediately after birth, then the newborn child does not receive a "habitual residence" in the country of his birth (BGH, decision of March 20, 2019, XII ZB 530/17, NJW 2019, 1605). Thus, the paternity of the child is governed by German law according to his or her "residence statute" (Art. 19 para. 1 sentence 1 EGBGB).
In such a case, paternity is not based on the decision of the administrative authorities of the state in which the child was born by the surrogate mother, but is based on the "Paternity Act" and on German family law. In such a case, the Birth Certificate in which the genetic mother is listed as the mother of the child is not recognized in Germany, but only the surrogate mother is legally the mother of the child (§ 1591 BGB).
The legal situation of the genetic father is somewhat better, as he has the possibility, with the consent of the surrogate mother, to recognize his paternity. And the intended mother, who will thus not become a mother in Germany, only has the possibility of adoption. But there are exceptions if the foreign law is to be applied and taken into account in Germany.
This is possible if the paternity of the child is determined according to the country of birth of the child (Art. 19 para. 1 sentence 2 EGBGB). The child's parents can then be identified from the birth certificate issued in the child's country of birth. Either both intended parents or only one of them is indicated as the child's parents.
Therefore, in our opinion, it is advisable to either immediately adjudicate in the country of birth of the surrogate mother and have it recognized in Germany or, if this is not possible, not to return with the child to Germany after the birth of the child, but to live in the country of birth for a few months in order to obtain "ordinary residence" there. In these cases, the official proof of birth (Birth Certificate) will be sufficient for the recognition of maternity.
In the case of surrogacy, this means that the intended mother becomes the legal mother despite the (different) legal situation in Germany.
If one or both of the named parents are listed on the child's birth certificate as the child's parents and if at least one of the parents has German citizenship, they can apply to the civil registration office under section 36 PStG to enter the child's birth into the German birth register. The content of the entry is the result of section 21 PStG. Pursuant to section 21, paragraph 1, no. 4 of the PStG, the names of the parents must also be entered.
The civil registration authority in whose area of responsibility the foreign-born person resides or has recently resided or has his or her habitual residence is responsible for the certification. If the civil registration authority refuses to register, the parents may apply to the family court to instruct the authority to carry out the registration. In case of doubt, the civil registration authority can also obtain a court order that an official act must be carried out (section 49 PStG).
It is important to note that Germany has strict regulatory and ethical standards regarding reproductive technologies and these are regularly reviewed and updated.
Recently, however, the German legal system has outlined positive developments in favor of legally permitting the use of altruistic surrogacy
The European Court of Human Rights confirmed this in the judgment in Dixon v. the United Kingdom concerning Article 8 (1) ECHR, that the use of "artificial insemination techniques" is part of "private and family life". This means that it is not inherent in the Basic Law to limit this right to natural modes of reproduction only. On the contrary, fundamental rights must be in line with new social and technical developments and therefore remain open and capable of growth, rather than being shaped by a "state image of the ideal family".
In the coalition agreement for 2021-2025, the SPD, the Greens and the FDP agreed to study the legalization of altruistic surrogacy, i.e. those surrogacies that are not carried out for commercial reasons. The Commission on Reproductive Self-Determination and Reproductive Medicine is currently working on possible solutions to this situation.
Head of judicial department «Success» surrogacy centre