Surrogacy for Same-Sex Couples

Especially for same-sex couples, surrogacy plays a decisive role in being able to have children with genetic relatives. However, they have to contend with far-reaching legal restrictions. Many countries that allow surrogacy, in principle, restrict the permission to heterosexual persons, often even to heterosexual, married couples. An example of this is Ukraine. Due to the far-reaching possibility of having surrogacy recognised even as a non-Ukrainian citizen, it is a popular country for surrogacy. However, the legalisation only applies to heterosexual, married couples.

The USA and Canada are the best-known countries where surrogacy is generally possible and thus also legally permitted for same-sex couples. In Europe, the legal requirements usually provide for heterosexual partnership, marriage, or nationality. In the UK, for example, it is, in principle, open to same-sex couples to use a surrogate mother, but only to those with British citizenship. In addition, the surrogate mother in the UK is entitled to keep the baby for herself as the intended parents are not automatically considered legal parents. In some European countries, there are also no legal requirements for surrogacy, so it is very unsafe for intended parents to start their journey with a surrogate there. They are not legally entitled to take the child to themselves, so any surrogacy contracts concluded are invalid in court.

In Eastern European countries, the legal requirements for surrogacy are more open, however, it may be unsafe in some instances to seek a surrogate mother due to the ongoing war. Legally, unlike Ukraine, Russia is where same-sex couples are allowed to use a surrogate mother. However, since the end of 2022, only Russian citizens can use a surrogate mother to give birth to their child.

In Colombia, the possibility of surrogacy has been legalised not only for same-sex couples but also for homosexual singles. However, surrogacy practice in Colombia is not based on a permission law but on a precedent from 2009, which was previously considered the basis. However, since it is not, on a legislative footing, the principles of the precedent could also be deviated from again in the future. A legal guarantee can therefore not be granted.

Although the USA does not have a unified law on surrogacy, some states have liberal regulations that allow all parents to have their children through surrogacy. In California, among others, anyone can use a surrogate mother, regardless of gender, marital status, or sexual orientation. Here, both altruistic and commercial surrogacy have been possible since 2013. Furthermore, it is regulated by contract that the surrogate mother does not acquire parental rights with birth; moreover, the intended parents can be declared legal by prenatal order.

In addition to the status of legal parents, each person can decide which designation (father, mother, parent) is to be recorded on the birth certificate. This choice includes not only same-sex persons but also non-binary and trans persons. The fact that there was a surrogate mother for the birth process does not have to be noted on the birth certificate.

Canadian law makes no distinction between heterosexual or same sex intended parents. Relationship status and gender do not matter, so that single fathers can engage a surrogate mother.

In contrast to the USA, however, a significant difference is that there are no prenatal orders, so the surrogate mother is initially registered as the legal mother with the birth. In some Canadian provinces, intended parents can register as legal parents by simple registration whereas a court order is required in other areas. Due to the lack of prenatal orders, it would be legally possible for the surrogate mother to keep the child with her. In such a case, there could be a dispute about parenthood in court. However, due to the genetic relationship with at least one intended parent, there is a strong likelihood that such a legal dispute would be decided in favour of the intended parents.

Another difference to the USA is the ban on commercial surrogacy. In Canada, only altruistic surrogacy is allowed. On the one hand, this lowers the costs for the intended parents. On the other hand, this form can make the search for a surrogate mother considerably more difficult.

The starting point for the legal classification of a mother in Germany is Section 1591 of the German Civil Code (BGB), which states that the mother of a child is the woman who gave birth to it. Since the surrogate mother gives birth to the child, the intended parents are not initially considered the child’s legal parents under German law. For the child’s genetic father, it is possible to prove through genetic tests that the child is theirs so that they can register as a parent. Unfortunately, it is more difficult for the intended mother to be recognised as a parent since under German law, the role of mother is already assigned to the surrogate mother. Similarly, a second father who cannot prove a genetic relationship with the child is not simply granted paternity.

Of course, legally speaking, adoption is possible after a foreign surrogacy. However, an adoption process entails risks for the intended parents and the child. The German Federal Supreme Court already argued in 2014 that if an adoption is sought instead of direct registration of parenthood, the child is legally considered parentless for the duration of the process, with the consequence that the intended parents could decide against parenthood after all. This would be contrary to the child’s best interests, so in the individual case to be decided, the registration of parenthood of the two intended fathers was ordered.

From the overall German case law on surrogacy that has been handed down so far, a distinction is made between a simple recognition and an elaborate adoption, depending on whether a foreign decision within the meaning of Section 108 of the German Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG) prescribes parenthood. A foreign decision is amenable to recognition in Germany, but an actual determination or notification of knowledge is not. As these are subtleties of legal interpretation, it is advisable to consult an experienced family lawyer to maximise the chances of a brief and easy registration of your parenthood.

In addition to surrogacy, a desire to have children can be fulfilled through adoption, fostering children or co-parenting. Each of these means has their own legal and practical advantages and disadvantages. In contrast to surrogacy, there is usually no genetic relationship with the child in the case of the alternatives mentioned. Depending on your situation and individual ideas about your desire to have a child, it may still make sense to investigate all the options for starting a family. Our German family lawyers will help you decide which option best suits you and your wishes. We will explain the legal advantages and disadvantages of the family models under consideration and the respective implementation strategies. Of course, we will help you navigate through the complex requirements and procedures. Our goal is to ensure that your rights and interests are protected in the best possible way.

Read more about the adoption procedure in Germany here.