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 (§ 1591 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 (§ 1592 no.1 BGB) or
• The man who has acknowledged paternity (§ 1592 no.2 BGB) or
• The man whose paternity has been established by a court (§ 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. In the case of surrogacy for same-sex couples, there are often no differences in the way parental recognition is granted in Germany. However, they have to deal with higher requirements in advance because, at least within Europe, surrogacy is not allowed for same-sex couples in many countries.

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

If the surrogate mother is not married, paternity is established by the genetic father’s acknowledgement of paternity. 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 occur during pregnancy, § 1594 (4) BGB. The consent of the (surrogate) mother, which is usually given, is always required for this. However, depending on the country of destination, these circumstances are already specified in the contract with the surrogate mother before fertilisation.

Since citizenship law in Germany is fundamentally based on the principle of descent, the intended child acquires German citizenship by birth, §§ 3 (1) no. 1, 4 (1) of the German Nationality Act (StAG), which is essential for returning 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 by a court decision abroad. According to § 108 FamFG, ‘foreign decisions shall be recognised without the need for any special procedure’. However, for this to happen, the intended parents’ parental status must be clearly evident from the tenor of the foreign judgment. Only then can the German court recognise it. However, if a foreign court ruling did not establish the intended parents’ parenthood but merely by a registrar’s entry, the German authorities assume, per German law, that the child is to be assigned to the surrogate mother. In such cases, adoption is the only remaining option.

The only option is the adoption procedure if the above-mentioned judgement is not forthcoming. This is no different from other (foreign) adoption procedures since surrogacy is not legally recognised. If the intended father is already registered as the legal father, the intended mother can consider undertaking the stepchild adoption procedure. The decisive factors for a successful adoption procedure are the child’s well-being and the establishment of a parent-child relationship. Adoption proceedings can take a long time and involve a great deal of effort. In any case, it is advisable for you, as intended parents, to seek legal advice before a surrogacy takes place so that you can concentrate on being parents and ensure that the adoption process runs as smoothly as possible.

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

On 15 May 2023, the Sinsheim District Court recognised the parenthood of the intended parents based on a Californian decision. However, neither of the intended parents has a genetic relationship with the child. This judgment is the first to assume compatibility with German law, although the child has no genetic relationship with the intended parents due to embryo and sperm donation. Parenthood had previously been established by a Californian court, which is why the Local Court of Sinsheim could recognise this decision under § 108 FamFG.

On 23 January 2023, the Celle Higher Regional Court refused to recognise the parenthood. The intended parents had given birth to a child in Georgia through surrogacy and were also registered as parents in the child’s birth certificate there. However, the parenthood entered by the local authorities does not constitute a decision that can be recognised under § 108 (1) FamFG. The paternity of the intended father was established under § 1600d (1) BGB after genetic proof of kinship. 

In its decision of 14 December 2023, the Higher Regional Court of Frankfurt am Main allowed the adoption of a child born to a Ukrainian surrogate mother. The intended father had already had his paternity recognised at the beginning of 2020. After the German couple had taken the child in the summer of 2020, the wife now also wanted to adopt the child. The prerequisite for the Higher Regional Court of Frankfurt was that the child be raised in the household of both intended parents without objection and that the child acknowledged them both as its social parents. Particular consideration was given to the fact that the Ukrainian surrogate mother had given the consent for adoption required under German law and at no point wanted to raise the child as her own.