Fertility Treatment and Legal Parenthood in Germany

Many fertility clinics in Germany will only begin treatment once patients can show that they have received legal advice. Clinics usually ask for a certificate from a lawyer confirming that this consultation took place. At Schlun & Elseven Rechtsanwälte, our family law team provides the consultation and issues the certificate directly afterward.

The consultation is open to single women and to married and unmarried couples, whether opposite-sex or same-sex, including those who live abroad and plan to have treatment in Germany. It covers the questions that determine your family’s legal position, including:

• who your child’s legal parents will be
• custody and contact rights
• the sperm donor registry and your child’s right to know the donor’s identity
• inheritance
• child support and other financial questions
• any specific legal points your clinic asks us to cover

The process has three steps:

1. Book a consultation with our family law team through our contact page.
2. Attend the online consultation, which lasts around 60 minutes.
3. Receive the certificate to present to your clinic.

Clients often contact us only shortly before their scheduled treatment date. Some questions, such as how a second parent will be legally recognized, take time to resolve. For this reason, we recommend booking the consultation as soon as you decide to start treatment. If your clinic has given you a list of topics or its own form, send it to us in advance so that we can cover everything the clinic needs.

Under Section 1591 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the legal mother is always the woman who gives birth to the child, and her motherhood cannot be contested. The legal father is the man who is married to the mother at the time of birth, who has recognized paternity, or whom a court has declared to be the father (Section 1592 BGB). German law currently has no equivalent rule for a second mother.

These rules decide custody, child support, inheritance, and often the child’s citizenship, and they do not simply follow genetics. For families using donor sperm, couples who are not married, and couples of two women, they work differently from what many people expect, so it is worth knowing where you stand before treatment begins.

The table below shows who the legal parents are at birth in each situation, and what the second parent needs to do.

If you are married, your husband becomes the child’s legal father automatically at birth, even if the child was conceived with donor sperm. If both of you consented to treatment with donor sperm, neither of you can later contest his paternity (Section 1600(6) BGB). This protects the child: the father cannot walk away from his legal responsibilities later, for example after a separation, and the child keeps a legal father along with the support and inheritance rights that come with him. We recommend recording your joint consent in writing.

If you are not married, the child has no legal father at birth until your partner recognizes paternity. A recognition of paternity (Vaterschaftsanerkennung) can be made before the birth (Section 1594(4) BGB). It requires the mother’s consent and must be formally recorded by the youth welfare office (Jugendamt), a registry office (Standesamt), a notary, or the local court (Sections 1595 and 1597 BGB). Once your partner has recognized paternity, the same protection applies as for married couples: if you both consented to treatment with donor sperm, neither of you can contest his paternity later.

Custody is a separate step. Unmarried parents do not share custody automatically. The mother has sole custody unless the parents make a joint custody declaration (Sorgeerklärung), marry, or obtain a court order (Section 1626a BGB). Both the recognition and the declaration can be made at the youth welfare office, and both can be made before the birth (Section 1626b(2) BGB). We recommend completing both early, so that you can both make decisions for your child from the start.

In some binational cases, the recognition only takes effect once the local foreigners authority (Ausländerbehörde) has approved it (Section 1598(1) BGB). Under Section 85a of the Residence Act (Aufenthaltsgesetz, AufenthG), this can apply where one partner is German or has a permanent right of residence and the other does not have a secure residence status, for example during the asylum process or while in Germany on a Schengen visa. Holders of an ordinary residence permit are not affected.

Couples who have lived together at a registered shared address in Germany for at least 14 months do not need approval. The exemption for biological fathers does not help after treatment with donor sperm, so if this rule may affect you, talk to us before treatment begins.

If you have treatment as a single woman at a German clinic, using sperm from a sperm bank, your child has one legal parent: you. The donor cannot be declared the child’s legal father (Section 1600d(4) BGB). He has no custody and no duty to pay child support, and the child does not inherit from him by law. Your child does, however, have the right to learn the donor’s identity through the sperm donor registry. Not every clinic or sperm bank treats single women or female couples, so check this with your clinic early.

This protection only applies where the sperm comes from a sperm bank and the treatment takes place in a medical facility. With a private donor, such as a friend or someone found online, a court can declare the donor the legal father, with child support and inheritance consequences on both sides. Some German clinics work with sperm banks abroad, but the law does not expressly say whether the same protection applies in that case. If you are using sperm from abroad or having treatment outside Germany, our lawyers can assess your case.

When two women have a child together, only the woman who gives birth is the legal mother at birth. Marriage does not change this. Unlike a husband, a wife does not become a parent automatically, and there is no equivalent of recognizing paternity for a second mother. Under current German law, the second mother becomes a legal parent through stepchild adoption (Stiefkindadoption). Married couples can apply once the child is born (Section 1741(2) BGB). Unmarried couples in a stable, long-term relationship can also apply (Section 1766a BGB).

Marriage still makes a practical difference. Before a stepchild adoption, the parents and the adopting parent normally have to attend counseling at an adoption agency and obtain a certificate. Under Section 9a(4) of the Adoption Placement Act (Adoptionsvermittlungsgesetz, AdVermiG), this requirement does not apply if the second mother was already married to the birth mother when the child was born, with a narrow exception for certain births abroad. Until the adoption is complete, the second mother is not a legal parent, which affects both custody and inheritance. We explain in our consultation how to protect both parents and the child in the meantime.

If the second mother is already recognized as a parent in another country, for example because you married or had your child there, that recognition can matter in Germany. We explain how this works in the section on international families below.

IVF, ICSI, insemination with partner or donor sperm, and freezing eggs and sperm are all allowed in Germany. Egg donation and surrogacy are not. These rules come mainly from the Embryo Protection Act (Embryonenschutzgesetz, ESchG), which is stricter than the law in many other countries, so some options available in your home country may not be available here.

The most common forms of fertility treatment are permitted in Germany:

• in vitro fertilization (IVF)
• intracytoplasmic sperm injection (ICSI), where a single sperm is injected directly into an egg
• insemination with your partner’s sperm or donor sperm
• freezing eggs and sperm for later use

The Embryo Protection Act makes several methods a criminal offense, including:

• egg donation
• surrogacy
• transferring more than three embryos in one cycle
• fertilizing more eggs than are to be transferred in that cycle

The last two rules explain why German clinics often work with fewer embryos than clinics abroad. Only the doctor or other person who carries out a prohibited procedure commits an offense. The woman who donates or receives an egg, the surrogate mother, and the intended parents do not (Section 1(3) ESchG).

Many people living in Germany travel abroad for treatment that is not available here, most often egg donation. Having treatment abroad is not an offense, but it has legal consequences once you are back in Germany.

With egg donation, the woman who gives birth is the child’s legal mother under German law, whether or not she is genetically related to the child, and her motherhood cannot be contested. For parentage purposes, egg donation abroad therefore causes no problem.

Your child’s right to know their origins is a different matter. The German sperm donor registry only covers sperm donations used in Germany. Whether your child will later be able to find out who the egg or sperm donor is depends on the law of the country where you had treatment, and in some countries donors remain anonymous. If this matters to you, consider it when choosing a clinic abroad.

Surrogacy abroad raises far more complex questions. Germany does not recognize the surrogacy arrangement itself, and the intended parents usually have to be established as the legal parents through recognition or adoption procedures.

Statutory health insurance only covers part of the cost of fertility treatment for married couples using their own eggs and sperm. Treatment with donor sperm, and treatment for unmarried couples or single women, is usually self-funded.

Germany keeps a central sperm donor registry (Samenspenderregister), run by the Federal Institute for Drugs and Medical Devices (BfArM). Under the Sperm Donor Registry Act (Samenspenderregistergesetz, SaRegG), whenever donor sperm from a sperm bank is used for treatment in Germany, the donor’s details are recorded in the registry and kept for 110 years (Section 8 SaRegG). Before donating, every donor is told that a child conceived with his sperm may later learn his identity, and that he cannot become that child’s legal father.

Anyone who believes they were conceived with donor sperm can ask the BfArM for the donor’s details (Section 10 SaRegG). These are his name, date and place of birth, nationality, and address, along with any further information he chose to provide. Parents can make the request on behalf of a child under 16. From the age of 16, only the child can make it. This right does not depend on whether the parents have told the child how they were conceived, so a child can find out independently. The donor is informed four weeks before his details are released.

The registry, and the legal protection that comes with it, only covers sperm from a sperm bank used for treatment in a medical facility. If you conceive with a private donor, for example a friend or someone you met online, neither applies. The same is true of home insemination, even where the sperm comes from a sperm bank. Some sperm banks and clinics also accept a donor you know personally, who then goes through their usual screening. Whether the protection applies in that situation has not been conclusively settled, so take legal advice before you go ahead.

This has consequences on both sides. A private donor can be declared the legal father by a court. The child would then have claims to child support and inheritance against him, and he could seek contact with the child. A private agreement between you and the donor does not reliably protect either side, because German law, not a contract, decides who a child’s legal parents are. There is also no registry entry, so your child’s ability to learn about the donor later depends entirely on what you record yourselves.

If you are considering a private donor, contact our family law team before conception. We can explain the risks in your situation and how to reduce them.

For a child who lives in Germany, German law usually decides who the legal parents are and who has custody, but another country’s law can also apply. This matters if you or your partner do not hold German citizenship, if you live in Germany as a foreign national, or if you have treatment or give birth abroad, and it can also affect which citizenship your child holds.

Parentage generally follows the law of the country where the child habitually lives. Under Article 19 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche, EGBGB), parentage can also be determined, in relation to each parent, under the law of that parent’s nationality, and where the mother is married, under the law that governs her marriage. In some cases, this means a parent can be recognized under the law of their own country even where German law alone would not recognize them. Whether this works in your case depends on the specific laws involved, which our lawyers can assess.

Custody follows a similar logic. If you already had parental responsibility for your child under the law of the country where you lived before, it continues after you move to Germany (Article 16(3) of the Hague Child Protection Convention). From then on, German law governs how you exercise it.

If a foreign court has ruled on your child’s parentage, that decision generally needs to be recognized in Germany before it takes effect here. A foreign birth certificate naming both parents is not a court decision, and German authorities assess it under the rules above.

Within the EU, the Court of Justice of the European Union (CJEU) has held that a parent-child relationship established in another member state must be recognized so that the child can travel and live in another member state with both parents (V.M.A. v Stolichna obshtina, rayon “Pancharevo”, C-490/20). For two mothers, this protects the family’s right to travel and reside together. It does not automatically make the second mother a legal parent under German law for other purposes, such as custody or inheritance.

If your child is German and was born abroad, you can apply to have the birth recorded in the German birth register under Section 36 of the Civil Status Act (Personenstandsgesetz, PStG). The registry office for your place of residence in Germany handles the application. If you do not live in Germany, the Standesamt I in Berlin does.

Under Section 4(1) of the Nationality Act (Staatsangehörigkeitsgesetz, StAG), a child becomes a German citizen at birth if at least one legal parent is German. Only legal parents count, which is one more reason to settle parentage early. If only the father is German and he is not married to the mother, his recognition of paternity must be effective under German law. It must also be made before the child turns 23.

Two further rules matter for international families. First, if the German parent was born abroad after 1999 and lives abroad, a child born abroad only becomes German if the parents apply to register the birth in Germany within one year of the birth (Section 4(4) StAG). It is enough for the application to reach the German embassy or consulate within that year. Second, a child born in Germany to foreign parents becomes German at birth if one parent has lived in Germany lawfully for several years and holds a permanent right of residence (Section 4(3) StAG).

Where only the second mother is German, the child does not become German at birth through her. The child acquires German citizenship once the stepchild adoption takes effect, provided the adoption application is made before the child turns 18 (Section 6 StAG).

At Schlun & Elseven Rechtsanwälte, our family law team advises single women and married, unmarried, and same-sex couples on the legal side of fertility treatment, ideally before treatment begins. We assess your situation, answer the questions your clinic needs answered, and issue the counseling certificate after the consultation. Our lawyers advise in English, work remotely with clients in Germany and abroad, treat every inquiry confidentially, and explain the costs before any work begins. Where another country’s law is involved, we coordinate with partner firms abroad.

Have your situation reviewed before treatment begins and contact our family law team.