Adoption in Germany after Surrogacy Abroad

The German law explicitly stipulates that the following are required for parenthood:

• The mother of a child is the woman who gave birth to it (Section 1591 of the German Civil Code, BGB) and
• The father of a child is the man who is either married to the mother of the child at the time of birth (Section 1592 no.1 BGB) or
• The man who has acknowledged paternity (Section 1592 no.2 BGB) or
• The man whose paternity has been established by a court (Section 1592 no.3 BGB).

Apart from these possibilities of parenthood, German law provides for adoption as the only alternative. In particular for the intended mother and father, or in the case of same-sex relationships for both intended mothers or fathers, of a child born through surrogacy, German law requires adoption to be able to take on the role of mother or father from a legal perspective.

Overall, the issue of surrogacy for same-sex couples is legally even more complex. Please read our article on the subject and contact us if you have any questions. We will be happy to answer any questions and support you.

The regulation on who is the mother of the intended child is clear: the woman who gives birth to it – i.e., the surrogate mother in any case. The surrogate mother cannot waive this status by contractual declaration. It needs to be clarified who is the father of the intended child under German law. If the surrogate mother is married, the husband of the surrogate mother is considered the father of the child according to Section 1592 (1) BGB. The existence or non-existence of genetic relationships is irrelevant.

If the surrogate mother is not married, paternity is established by acknowledgement of paternity by the genetic father. If the intended father or one of the intended fathers is the genetic father, he can, therefore, legally secure his parental role through a declaration of recognition. This recognition can already occur during pregnancy, Section 1594 (4) BGB. The consent of the (surrogate) mother, which is usually available, is always necessary for this.

Since citizenship law in Germany is fundamentally based on the principle of descent, the intended child acquires German citizenship by birth, Sections 3 (1) no. 1, 4 (1) of the German Nationality Act (StAG) – which is essential for the return to Germany.

If paternity is acknowledged, the married partner can adopt the child through stepchild adoption. If the father is not genetically related to the child, neither of the fathers is genetically related to the child, or if the intended parents are two intended mothers, parenthood must be established by a court.

Parenthood may have already been established abroad by a court decision or administrative act. In such cases, the German state recognises that an examination of the legality of surrogacy and the safeguarding of the best interests of the child has already taken place. The foreign court decision ensures that the surrogate mother’s rights have not been violated and that she has voluntarily surrendered the child to the intended parents.

According to Section 108 (1) of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG), “foreign judgments shall be recognised without the requirement of a particular proceeding”. However, if the intended parents’ parenthood abroad was not established by the decision but merely by registration by a registrar, the German authorities assume, following German law, that the child is to be assigned to the surrogate mother. In such cases, the adoption procedure remains.

To be granted parenthood under German law, without recognition, adoption proceedings are carried out in many cases. This process is similar to other (foreign) adoption procedures, as surrogacy is not legally significant. The decisive aspects in adoption proceedings are the best interests of the child and the establishment of a parent-child relationship. Both are usually easy to demonstrate in the case of intended parents and their child born to a surrogate mother. Hence, the chances of the success of an adoption are relatively high.

The problem is not the outcome of the adoption procedure but the necessity of adoption itself. An adoption, in contrast to a directly recognised parenthood, presupposes several points. This can be seen in the large number of documents to be submitted. This is followed by a suitability test and a foster relationship between the intended parents and the child that precedes the adoption.

All in all, the adoption procedure is time-consuming. It is in advisable for intended parents to seek legal advice before carrying out a surrogacy, or at least as early as possible, to make it as easy as possible for them to become a parent.

Due to the problems surrounding the recognition of parenthood, there have been repeated court cases since the medical possibility of surrogacy, involving a variety of arguments and guidelines.

Most recently, on 15.05.2023, the district court Sinsheim recognised the parenthood of the intended parents based on a Californian decision, although neither of the intended parents has a genetic relationship to the child. This ruling is the first to accept compatibility with German law, even though the child has no genetic relationship to the intended parents due to embryo and sperm donation. A Californian court had previously established the parenthood, so the district court Sinsheim recognised this decision following Section 108 FamFG.

Furthermore, the Higher Regional Court of Celle ruled against the application of the intended parents. The couple wanted to fulfil their wish to have a child through surrogacy in Georgia, where they were registered as parents on the birth certificate. Since the decision of the Georgian Ministry of Justice confirming the intended parents’ parenthood does not constitute a decision within the meaning of Section 108 FamFG, it cannot be recognised as such. The paternity of the intended father was established under German law by recognition after genetic evidence of kinship. However, the intended mother was not recognised as the child’s legal mother because, under German law, the woman who gives birth to a child is its legal mother.

In 2018, a Danish intended mother was initially denied the stepchild adoption of her child, who was genetically related to her. The family appealed to the European Court of Human Rights, which ruled on 6 December 2022 that the best interests of the child require legal certainty so that adoption must be made possible in this case.

In 2021, the European Court of Human Rights ruled on such a case. An Icelandic district court had initially refused to recognise the intended parents as parents. The ECHR ultimately found that refusing to recognise parenthood interfered with the right to respect for family life. However, the right to respect for family life had been respected by allowing the intended parents to care for the child as foster parents. Since the intended parents divorced during the adoption proceedings, the registration of parenthood by adoption was also rejected.

The variety of court decisions, which is only presented in excerpts, shows that there is no precise regulation of the recognition of parenthood. It is, therefore, even more important that you, as intended parents, contact experienced family law lawyers who will work towards an outcome that always puts the best interests of the child first.

In its coalition agreement, the current German government promised to set up a working group to review, among other things, whether the ban on surrogacy should remain in place. The working group has not yet published any new findings or proposals.