The Jens Spahn Case: What His Resignation Reveals About Germany’s Legal Treatment of Surrogacy Abroad

In mid-July 2026, a private message ignited one of the biggest political debates of the summer in Germany. Jens Spahn, a senior German politician who was then chairman of the CDU/CSU parliamentary group (the Union faction) in the Bundestag, and his husband, Daniel Funke, became fathers of a son, carried by a surrogate mother in the United States. What began as personal happy news turned within days into a political affair that ended with Spahn’s resignation as parliamentary group chairman. The reason for the intensity of the debate is not hard to find: surrogacy is banned in Germany, and Spahn, as a politician known for his work on health policy, had himself repeatedly spoken out against legalizing it.

The case raises far more than a political question. It illustrates how German couples struggling to have children turn to international options, what the legal position actually is in Germany and in the United States, and which legal hurdles intended parents must clear once they return home.

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Why the Spahn Case Is Legally Less Clear-Cut Than It Seems

On German social media, commentators were quick to call it a crime. In fact, the picture is more nuanced. According to consistent media reports, Spahn and his husband did not commit a criminal offense by using a surrogate in the United States. The reason lies in how the German ban is structured. It does not target intended parents, but rather other participants in the process.

The Legal Situation in Germany: A Ban With a Limited Scope of Application

German law does not prohibit surrogacy through a single, explicit surrogacy ban. Instead, it works through two separate statutes, each criminalizing or prohibiting specific acts:

• The Embryo Protection Act (Embryonenschutzgesetz, ESchG) makes it a criminal offense under Section 1 ESchG to artificially inseminate a woman who is willing to hand the child over to a third party after birth, or to transfer another woman’s embryo into her. This provision is directed primarily at the treating physician, not at intended parents. Under Section 1(3) of the Act, the surrogate mother herself and the person who intends to raise the child on a permanent basis remain exempt from criminal liability.
• The Adoption Placement Act (Adoptionsvermittlungsgesetz, AdVermiG) prohibits the arranging or brokering of surrogate mothers (Leihmütter, women who carry a pregnancy without a genetic link to the child) and traditional surrogates (Ersatzmütter, women who also provide the egg and are therefore genetically related to the child) under Section 13c AdVermiG. A violation is a criminal offense under Section 14b AdVermiG, but expressly only for the person who arranges the surrogacy. Section 14b(3) AdVermiG makes clear that the surrogate mother and the intended parents are not punished for this.

Under this framework, intended parents who use a surrogate abroad typically do not commit any of these offenses themselves. This is exactly why Spahn and his husband did not break the law, even though using a surrogate is considered highly controversial in German society and politics. On the civil law side, Section 1591 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) provides that the legal mother is always the woman who gave birth to the child, regardless of genetic descent or contractual arrangements. Surrogacy contracts are therefore void under German law.

In practice, many intended parents are initially unaware of this distinction between criminal law and civil law. They often worry that simply using a surrogate abroad could expose them to criminal liability. In most cases, that concern can be put to rest, though the specific facts of each case still need to be reviewed carefully, particularly where a placement agency or physician based in Germany was involved.

This legal framework also explains a pattern that has become well established in Germany over the years, sometimes referred to as “surrogacy tourism”: couples wishing to have children turn to countries where surrogacy is legal and where the process carries reliable legal protection.

The United States as a Preferred Destination

Within this international landscape, the United States has for years been one of the most attractive destinations for German intended parents, including Spahn and his husband. This is largely because the United States has no unified federal law on surrogacy. Instead, regulation is left to individual states, ranging from very permissive rules to states where surrogacy is banned outright or simply not addressed by law.

California is widely regarded as one of the most permissive states. Surrogacy agreements are recognized under family law there and can be confirmed by a court, regardless of whether the intended parents are married, unmarried, opposite-sex, or same-sex. Central to this is a legal instrument unfamiliar to German law: the pre-birth parentage order. It legally assigns the child to the intended parents while the surrogate is still pregnant, without requiring any genetic link to the child. As a result, the intended parents, not the surrogate, appear directly on the birth certificate.

Besides California, the following states are also generally considered relatively permissive toward surrogacy agreements:

• Washington,
• Nevada,
• Colorado,
• Pennsylvania,
• Vermont,
• Maine,
• Connecticut,
• New Hampshire,
• New Jersey,
• Delaware,
• Idaho, and
• Michigan (since April 2025, under the Assisted Reproduction and Surrogacy Parentage Act).

In other states, surrogacy is generally permitted but subject to additional requirements. Still others ban it outright or have no legal regulation in place at all. Intended parents are strongly advised to avoid these states, since, without a clear legal basis, there is no reliable way to establish parentage for the child.

What Happens After Returning to Germany

Once the child is born in the United States and listed on the US birth certificate, the legal work for the intended parents is not yet finished. Two further steps are generally required for recognition in Germany:

• Legalization of the birth certificate: since both Germany and the United States are parties to the Hague Apostille Convention (the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents), an apostille is generally sufficient in place of full legalization.
• Recognition of parentage by the German civil registry office (Standesamt): in practice, this step is usually the bigger hurdle. Because German law always treats the woman who gave birth as the legal mother, the civil registry office may question a US birth certificate that does not name the surrogate. The Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s highest court for civil and criminal matters, has ruled that German descent law continues to apply and the surrogate remains the legal mother. This applies where the child, as is typically the case, is brought to Germany shortly after birth without a prior foreign parentage decision and in line with the shared intentions of everyone involved (BGH, order of March 20, 2019, case no. XII ZB 530/17). In these cases, the intended parent with no genetic link to the child can usually only obtain legal parental status through adoption. Establishing legal parenthood for that parent, typically one of the two fathers in a same-sex couple, often has to be pursued through the courts or achieved through stepchild adoption. If that fails, the only remaining option is generally a lengthy adoption process.

German case law has, in recent years, tended to become more favorable toward intended parents. A landmark decision came from the Federal Court of Justice in 2014 (BGH, order of December 10, 2014, case no. XII ZB 463/13), which held that recognizing a foreign decision that assigns legal parentage to intended parents in a surrogacy arrangement does not automatically violate German public policy (ordre public), provided that at least one intended parent is genetically related to the child. Numerous later decisions have followed this line. Most recently, the Federal Court of Justice confirmed this approach in a case involving Mexico, while also marking its limits: where no intended parent is genetically related to the child, recognizing the foreign decision generally produces a result incompatible with fundamental principles of German law, meaning the intended parents must pursue adoption instead (BGH, order of May 13, 2026, case no. XII ZB 220/25). The Federal Court of Justice has therefore also issued recent rulings on surrogacy arrangements outside the United States, including a case successfully argued by Schlun & Elseven’s own lawyers on behalf of two fathers whose child was born to a surrogate in Mexico.

Political Outlook: No Legislative Change in Sight

Beyond the Spahn case itself, it is worth looking at the current political landscape in Germany. A commission on reproductive self-determination and reproductive medicine, established by Germany’s previous federal government in 2023, examined the possible legalization of altruistic surrogacy in a dedicated working group and has already submitted its recommendations. The commission also addressed related questions in reproductive medicine, including egg donation in Germany. However, according to the responsible ministries, the coalition agreement of the federal government in office since May 2025, formed by the CDU, CSU, and SPD, expressly rules out any legislative change on this issue. The Spahn case is likely to reignite public debate in Germany about a possible future reform, though no concrete legislative initiative is currently in sight.

Schlun & Elseven: Legal Support for Surrogacy Abroad

Choosing to pursue surrogacy abroad is demanding for the couples involved, both emotionally and legally. At Schlun & Elseven, our family lawyers advise clients nationwide on every legal question raised by international surrogacy, from assessing the legal situation in the destination country, through drafting and reviewing surrogacy contracts, to representing clients before German civil registry offices and courts in matters of parentage recognition. Our goal is to make the path to a long-awaited child as legally secure and free of complications as possible for our clients. We advise clients both in person at our offices in Cologne, Düsseldorf, and Aachen, and nationwide by video or telephone consultation. For more on this topic, see our in-depth article on surrogacy in the United States and our family law page.