Adoption in Germany after Surrogacy Abroad

German law sets out exactly who is a child’s legal parent:

• The mother of a child is the woman who gave birth to it (Section 1591 of the German Civil Code, Bürgerliches Gesetzbuch or BGB).
• The father of a child is the man who was married to the mother at the time of birth (Section 1592 no. 1 BGB),
• 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).

Beyond these routes, adoption is the only other way to become a child’s legal parent under German law. For the intended parents of a child born through surrogacy, including two intended mothers or two intended fathers, this usually means that adoption is required before they can take on the legal role of mother or father.

Surrogacy itself is prohibited in Germany under the Embryo Protection Act (Embryonenschutzgesetz) and the Adoption Placement Act (Adoptionsvermittlungsgesetz), which is why intended parents turn to countries where it is permitted. In cases of surrogacy for same-sex couples, the rules on legal parenthood in Germany are largely the same. The greater hurdles usually arise beforehand, as surrogacy is not available to same-sex couples in many countries, particularly within Europe.

Under German law, the mother of the child is always the woman who gives birth to it, which means the surrogate mother. She cannot give up this status by contract. Who the legal father is depends on the circumstances. If the surrogate mother is married, her husband is considered the child’s legal father under Section 1592 no. 1 BGB, regardless of whether he is genetically related to the child.

If the surrogate mother is not married, the genetic father can establish paternity by acknowledging it. An intended father who is the genetic father can therefore secure his legal position through a formal declaration of acknowledgment, which is possible even before the birth (Section 1594 (4) BGB). The acknowledgment always requires the consent of the surrogate mother. This consent is usually given and, depending on the country, is often already addressed in the surrogacy agreement before conception.

Because German nationality law follows the principle of descent (ius sanguinis), a child whose legal father is a German citizen acquires German citizenship at birth under Sections 3 (1) no. 1 and 4 (1) of the German Nationality Act (Staatsangehörigkeitsgesetz, StAG). This is often what makes the child’s return to Germany possible in the first place.

Once paternity has been acknowledged, the intended father’s spouse can adopt the child through stepchild adoption. Where the intended father cannot acknowledge paternity, for example because the surrogate mother is married, or where the intended parents are two women, parenthood depends on recognition of a foreign court decision or, failing that, on adoption.

Legal parenthood may already have been established by a court decision abroad. Under Section 108 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG), foreign decisions are generally recognized in Germany without any special procedure. For this to work, the operative part of the foreign judgment (the tenor) must clearly state that the intended parents are the child’s legal parents. Recognition is excluded where the decision is manifestly incompatible with fundamental principles of German law (public policy) under Section 109(1) No. 4 FamFG.

In surrogacy cases, the decisive question is whether at least one intended parent is genetically related to the child. If so, the Federal Court of Justice (Bundesgerichtshof, BGH) has held that recognition does not, in principle, violate German public policy (BGH, decision of December 10, 2014, XII ZB 463/13). If neither intended parent is genetically related to the child, for example because both the egg and the sperm came from donors, recognition will, as a rule, be refused, and the intended parents must adopt the child (BGH, decision of May 13, 2026, XII ZB 220/25).

If parenthood abroad was not established by a court but merely recorded by a registrar, for example in a birth certificate, there is no decision capable of recognition. German authorities then apply German law and treat the surrogate mother as the child’s legal mother, even where the intended mother is the child’s genetic mother (BGH, decision of March 20, 2019, XII ZB 530/17). In these cases, adoption is the remaining option.

If there is no foreign court decision that can be recognized, adoption is the only remaining route. Since surrogacy is not legally recognized in Germany, the procedure does not differ from other adoption procedures involving a foreign element. Where the intended father is already registered as the legal father, the intended mother can consider stepchild adoption.

Adoption after surrogacy abroad can raise one further hurdle. Under Section 1741(1) sentence 2 BGB, a person who took part in an unlawful placement of a child for adoption may only adopt that child if this is necessary for the child’s welfare. The BGH has made clear that the child’s welfare takes priority over general deterrence, and that the use of a surrogate mother cannot on its own be a reason to refuse an adoption (BGH, decision of May 13, 2026, XII ZB 220/25).

The decisive factors for a successful adoption are the child’s welfare and the establishment of a parent-child relationship. Adoption proceedings can be lengthy and demanding. Intended parents are therefore well advised to seek legal advice before a surrogacy takes place, so that the path to legal parenthood is planned in advance and the adoption runs as smoothly as possible.

Because the recognition of parenthood after surrogacy raises difficult legal questions, German courts have dealt with these cases repeatedly. A landmark ruling came from the Federal Court of Justice (Bundesgerichtshof, BGH) in December 2014. It recognized a Californian judgment naming two intended fathers as the legal parents of a child, one of whom was the genetic father, and found that recognition did not violate German public policy. The court expressly left open what happens when neither intended parent is genetically related to the child. It has since answered that question.

The BGH held that where neither intended parent is genetically related to the child, recognizing a foreign court decision on parenthood will, as a rule, violate essential principles of German law, so recognition is refused. The intended parents must instead adopt, which is the route German law provides for exactly this situation. Earlier lower court decisions had taken a different view; a 2023 decision of the Local Court (Amtsgericht) of Sinsheim, for example, had recognized a Californian judgment without any genetic link. These decisions no longer reflect the law. At the same time, the BGH made clear that the use of a surrogate mother cannot on its own be a reason to refuse the subsequent adoption, as the child’s welfare takes priority (XII ZB 220/25).

A German married couple had a child through a surrogate mother in Ukraine, using the intended mother’s own egg and the intended father’s sperm. The Ukrainian registry office recorded the couple as the parents, and a German registry office initially registered the birth on that basis. The BGH confirmed that the entry had to be corrected to name the surrogate mother as the child’s mother. A foreign birth register entry is not a decision capable of recognition, and because the child had been brought to Germany shortly after birth, as everyone involved intended, German law applied to the question of parenthood. The intended mother was referred to adoption, even though she was the child’s genetic mother (XII ZB 530/17).

The Higher Regional Court (Oberlandesgericht) of Celle refused to recognize the parenthood of intended parents whose child had been born to a surrogate mother in Georgia. Although the intended parents were listed as the parents on the Georgian birth certificate, an entry made by the local authorities is not a decision capable of recognition under Section 108 (1) FamFG. The intended father’s paternity was instead established under Section 1600d (1) BGB after genetic proof of his relationship to the child.

The Higher Regional Court of Frankfurt am Main allowed the stepchild adoption of a child born to a surrogate mother in Ukraine. The intended father’s paternity had been acknowledged in early 2020. After the German couple took the child into their home in the summer of 2020, the wife applied to adopt the child as well. The court required that the child was being raised in the shared household of both intended parents without objection and that both had become the child’s social parents. It gave particular weight to the fact that the Ukrainian surrogate mother had given the consent to adoption required under German law and had never intended to raise the child as her own.

International surrogacy arrangements involve several legal systems at once. The law of the child’s country of birth determines which documents and decisions are issued there, while German law determines whether and how these are recognized in Germany. Planning across both systems from the outset helps avoid gaps in the child’s legal status, for example a period in which the child has no legal parent recognized in Germany.

Stepchild adoption is not limited to married couples. Since 2020, Section 1766a BGB also allows a partner in a stable, long-term relationship to adopt the other partner’s child. A relationship is generally considered stable if the couple has lived together in a marriage-like relationship for at least four years or lives together with a shared child. Unmarried intended parents should check early on whether they meet these requirements.

German courts and civil registry offices (Standesämter) typically require certified translations of foreign birth certificates, court decisions and other documents, often with an apostille or another form of legalization. Requirements differ from country to country, and missing or incomplete documents are among the most common causes of delay. Because recognition and adoption proceedings can take months, intended parents should also clarify the child’s entry into Germany, residence status and health insurance coverage for the interim period.