Surrogacy for Same-Sex Couples in Germany

Same-sex couples can access surrogacy most reliably in parts of the United States and in Canada, while the legal position in South America, including Argentina, is considerably less certain. Europe is the most restrictive region: some European countries permit surrogacy as a form of fertility treatment, but most of them only open it to opposite-sex couples, and some also require the intended parents to live in the country. For couples living in Germany, this rules out most European options.

The country you choose decides more than whether you can access surrogacy at all. It also decides which documents you receive after the birth, and those documents largely determine whether your parenthood can be recognized in Germany later. At a glance, the three main routes compare as follows:

Surrogacy in the United States is regulated at state level, so the legal position differs from state to state. Some states have specific surrogacy legislation, while others rely on general family law principles and court practice. In states that permit surrogacy, the intended parents and the surrogate mother sign a contract, and a court can then issue a decision establishing the intended parents as the child’s legal parents.

California is one of several states that expressly permit surrogacy, and it makes no distinction between same-sex and opposite-sex intended parents. Californian courts issue decisions establishing parenthood, which is the type of document German law can recognize. In our experience at Schlun & Elseven Rechtsanwälte, California’s clear legal framework and established court practice make it the most reliable route for same-sex couples.

Canada only permits altruistic surrogacy. Under federal law, it is a criminal offense to pay a surrogate mother for carrying a child, although she can be reimbursed for certain expenses related to the pregnancy. Parentage itself is a matter for the provinces, and the rules differ between them. Across Canada, however, surrogacy agreements generally cannot be enforced against the surrogate mother, and her consent after the birth is usually still required before the intended parents become the child’s legal parents. Even with a written agreement in place, the intended parents depend on her cooperation, so legal advice in the relevant province before the pregnancy is essential.

Some provinces, including Ontario, apply the same parentage rules to same-sex and opposite-sex couples, which makes Canada a realistic option for same-sex couples who are comfortable with an altruistic arrangement.

In many South American countries, surrogacy is not regulated by law, although it is tolerated and practiced. This leaves intended parents in an uncertain legal position. Where surrogacy is available, it is mostly offered to male couples, and far less often to female couples or transgender people.

Argentina, long seen as one of the more open options for same-sex couples, shows how uncertain this can be. Argentine law has no specific rules on surrogacy, and for years many Argentine courts approved arrangements regardless of the intended parents’ family situation. In 2024, however, Argentina’s Supreme Court refused a married male couple’s request to be registered as their child’s only parents and held that the woman who gave birth remains the legal mother. Lower courts have been divided since, so the outcome of a surrogacy in Argentina cannot currently be predicted with confidence.

Germany generally recognizes both of you as parents if a foreign court has decided that you are the child’s parents and at least one of you is genetically related to the child. Otherwise, you become parents through an acknowledgment of paternity, an adoption, or both, depending on whether you are a male or a female couple. The reason lies in German parentage law. Under Section 1591 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the child’s mother is always the woman who gave birth, whether or not she is genetically related to the child. The surrogate mother is therefore the legal mother in Germany unless a recognized foreign court decision says otherwise, and the surrogacy agreement itself has no legal effect.

If a court in the country of birth has decided that you are the child’s parents, that decision is generally recognized in Germany automatically (Section 108(1) of the Act on Proceedings in Family Matters, Gesetz über das Verfahren in Familiensachen or FamFG). You can also apply to the German family court (Familiengericht) for a binding decision confirming the recognition (Section 108(2) FamFG). If recognition succeeds, both of you are your child’s legal parents in Germany, and no adoption is needed. Both of you can then also be entered as parents when your child’s birth abroad is registered in the German birth register (Geburtenregister).

This only works with a court decision on parenthood. A birth certificate or birth register entry naming both of you as parents is not a court decision and cannot be recognized in this way, even if it was issued lawfully in the country of birth.

A German court does not review whether the foreign court reached the right result (Section 109(5) FamFG). It will, however, refuse recognition if the result would be manifestly incompatible with essential principles of German law, in particular fundamental rights. This ground is known as German public policy, or ordre public (Section 109(1) No. 4 FamFG). In surrogacy cases, the deciding factor is the child’s genetic link to the intended parents:

• At least one of you is genetically related to the child. The Federal Court of Justice (Bundesgerichtshof, BGH) recognized a Californian court decision naming two men in a registered civil partnership as the child’s parents, because one of them was the genetic father (BGH, decision of December 10, 2014, XII ZB 463/13).
• Neither of you is genetically related to the child. This applies, for example, where both egg and sperm came from donors. In this situation, recognizing the foreign decision will generally violate German public policy, and the intended parents must adopt instead (BGH, decision of May 13, 2026, XII ZB 220/25).

Without a recognizable court decision, German law decides who the child’s parents are. How you then become legal parents depends on whether you are a male or a female couple.

In a male couple, the route usually starts with the partner who is genetically related to the child. He can acknowledge paternity, which needs the surrogate mother’s consent, along with any further consents German law requires (Section 1592 No. 2 and Section 1595 BGB). The acknowledgment and the consents can be given before the birth, and they must be formally recorded by an authorized official, usually at the German embassy or consulate in the country of birth. If the surrogate mother is married, her husband is initially the child’s legal father under German law. The genetic father can still acknowledge paternity if the husband consents, and he then replaces the husband as the legal father from the birth (Section 1595a BGB). Our lawyers make sure all the necessary declarations are in place.

Once the genetic father’s paternity is established, his partner can become the second legal parent through stepchild adoption. This is open to a spouse and to an unmarried partner in a stable, marriage-like relationship in a shared household, which is generally assumed after four years of living together (Section 1741(2) and Section 1766a BGB).

Female couples without a recognizable foreign court decision both become parents through adoption. Neither of you gave birth, so neither of you is the child’s legal mother under German law, even if one of you provided the egg. German law also has no equivalent of acknowledging paternity for a woman.

A married couple adopts the child jointly. If you are not married, one of you adopts the child first, and the other can then adopt as a stepparent on the basis of your stable partnership (Sections 1741(2) and 1766a BGB). Planning the adoption from the start, ideally before the surrogacy begins, helps avoid long delays.

In any adoption after surrogacy, the surrogate mother must consent, and she cannot do so until the child is eight weeks old (Section 1747(2) BGB). Where intended parents commissioned or paid a third party to arrange the surrogacy, German law applies a stricter test: the adoption must be necessary for the child’s welfare (Section 1741(1) BGB). Courts assess this in the individual case, and the BGH has made clear that the use of a surrogate cannot on its own be a reason to refuse an adoption. An adoption after surrogacy abroad otherwise follows the general German rules, including the counseling and consent requirements.

Who the child’s legal parents are also decides the child’s citizenship. A child acquires German citizenship at birth if at least one legal parent is German. For male couples, this usually runs through the genetic father, if he is German, once his paternity is established. If the German partner only becomes a parent through adoption, the child acquires German citizenship once the adoption takes effect, and until then needs a visa or residence permit like any other foreign child. If neither of you is German, the child’s right to enter and live in Germany depends on your own residence status, usually through family reunification. In these cases, our family lawyers work alongside our immigration lawyers, so that parenthood and residence questions are handled together.

Cost is often the first thing intended parents compare, but it should not decide which country you choose. Whether your parenthood will be recognized in Germany depends largely on decisions you make before the surrogacy begins. Checking the following points in advance can spare you an unnecessary adoption process or months of uncertainty about your child’s legal status:

• Whether the country is open to your family situation. Check that the country permits surrogacy for same-sex couples. Also check whether it requires you to be married and whether both of you can be named as intended parents, not only one.
• Whether a court decides on parenthood. Only a foreign court decision can be recognized in Germany. If the country only enters you in a birth register or issues a birth certificate, plan for an adoption in Germany from the start.
• Whether the genetic link can be proven. Make sure the clinic documents which of you is genetically related to the child, and keep those records. Without a genetic link to at least one of you, recognition in Germany is generally ruled out.
• Whether the surrogate mother is married. For male couples, her husband is initially the legal father under German law, so the genetic father’s acknowledgment of paternity also needs the husband’s consent. Make sure the contract provides for this.
• What the contract says about the points that matter later. Before signing, check what happens if the surrogate mother changes her mind after the birth or there is a multiple birth, and which court will decide on parenthood.
• How the foreign documents will be accepted in Germany. Court decisions and birth certificates usually need an apostille, an international certificate confirming that a document is authentic, or legalization by the German embassy, as well as a certified translation. Arranging this while you are still in the country of birth saves considerable time.
• How long you may need to stay after the birth. German embassies and consulates can take some time to issue your child’s passport or entry documents, so plan your stay in the country of birth with this in mind.

At Schlun & Elseven Rechtsanwälte, our family law team advises same-sex couples from the first planning stage through to recognition or adoption in Germany. This includes:

• assessing which countries are open to you and whether parenthood established there can be recognized in Germany,
• reviewing surrogacy and agency contracts for their effect in Germany before you sign,
• coordinating with German embassies and consulates on acknowledging paternity and obtaining your child’s travel documents, and
• representing you before registry offices (Standesämter) and family courts in recognition and adoption proceedings.

International surrogacy matters often involve several legal systems at once. Where needed, we work with partner firms in the country of birth, and with our immigration lawyers where your child’s residence status is at stake. We advise in English, whether you live in Germany or abroad, and every step that does not require an in-person appointment can be handled online. Every matter is treated confidentially, and we work with a transparent cost structure, explaining any expected further costs at the outset. We advise clients from all over the world, and your matter can start with a consultation by video call, in which we review your plans or the documents you already have and set out the next steps. If you are planning a surrogacy abroad or have already returned to Germany with your child, contact our family law team to have your situation reviewed.