Egg Donation in Germany | Legal Classification and Changes

Egg donation is the insertion of eggs from the donor into another woman. The donor is, therefore, not the same as the woman who carries the child. According to the German Federal Ministry of Health, a distinction is made between

1. the donation of eggs that were retrieved from the woman for her own reproductive purposes but which she does not or no longer wishes to use for herself; this also includes the donation of pronuclear stages, i.e. eggs in the impregnation stage before fertilisation is complete,
2. the donation of eggs retrieved from a woman in a same-sex relationship to her partner, whereby the donor also wishes to establish her own parenthood,
3. the donation of eggs that are retrieved from a woman after hormonal stimulation solely for the purpose of another woman’s reproduction (purely altruistic egg donation).

The donor undergoes hormone therapy in preparation for egg retrieval. This is comparable to stimulation therapy in artificial insemination, except that the retrieved eggs are not transferred to the donor themselves but to a woman with an unfulfilled desire to have children. The therapy usually lasts 10 – 14 days and ends with the triggering of ovulation (drug-induced ovulation). After retrieval, the egg is either fertilised directly or after a freeze-thaw process with sperm using ICSI and transferred to the recipient’s uterus after the first cell division (legal classification as an embryo).

In Germany, the German Embryo Protection Act and the Transplantation and Medicinal Products Act regulate reproductive medicine and its legal framework. Under German law, a woman can re-implant her own artificially fertilised eggs. However, the actual donation of eggs – i.e., the separation of the donor and the recipient – is not permitted.

Section 1 of the German Embryo Protection Act: Anyone who transfers a foreign unfertilised egg cell to a woman, undertakes to artificially fertilise an egg cell for a purpose other than to bring about the pregnancy of the woman from whom the egg cell originated is liable to a custodial sentence not exceeding three years or a monetary penalty.

Due to legal restrictions, “reproductive travelling” has recently enjoyed great popularity. In other countries, other reproductive medical treatments are permitted or less strictly regulated by law. Egg donation is allowed in almost all European countries, and this availability means the procedure is being undertaken by German people who wish to have children. In recent years, Europe, Spain, and the Czech Republic have become important centres for egg donation treatment. Slightly more than half of all egg donation treatments in Europe occur in these countries.

Although egg donation is not yet legal in Germany, other assisted reproductive techniques are already well established and are increasingly being accepted by people with an unfulfilled desire to have children. These include various forms of artificial insemination.

On 15 April 2024, the Commission on Reproductive Self-Determination and Reproductive Medicine of Germany presented its final report, concluding that the current egg donation ban is not constitutionally required. A simple repeal of the ban on egg donation in the German Embryo Protection Act would also not be constitutionally permissible. If the legislator wishes to authorise egg cell donation in Germany, it must do so by law, such as in other countries, within the framework of a comprehensive Reproductive Medicine Act. In particular, it must include regulations regarding the requirements and the procedure.

To date, egg donation – and surrogacy – has been prohibited to prevent “split motherhood”. The legal mother of a child is the woman who gave birth to the child by Section 1591 of the German Civil Code (BGB). Whether there is a genetic relationship between the woman giving birth and the child is irrelevant. This results in “split motherhood”, as the genetic mother, the egg donor, can never also be the legal mother, as the recipient gives birth to the child.

Under German law, considering the possible detrimental consequences of this “split motherhood” against the right to self-determined reproduction plays a decisive role. There is often talk of “reproductive freedom”, “freedom to start a family”, or even “reproductive freedom”. However, in the European context, the individual’s rights are also considered when assessing the legalisation or prohibition of egg donation. For example, Art. 8 ECHR, the right to respect for private and family life, and Art. 12 ECHR, the right to marry, are considered when assessing the case law of the European Court of Human Rights on the subject of egg donation. The fact that sperm donation is permitted in Germany, even though it leads to “split paternity”, is also repeatedly used as an argument in favour of allowing egg donation.

The Commission’s recommendation is not politically or legally binding, so it remains to be seen whether egg donation – and surrogacy – will be legalised in Germany in the future. Our lawyers can advise you anytime on the current legal situation and options for assisted reproduction.