In continental terms, Europe is the most conservative place when it comes to surrogacy for same-sex couples. Although surrogacy is allowed as a form of fertility treatment in some countries, it is often only available to heterosexual couples.  In North and South America, however, surrogacy for same-sex couples is more common. In Argentina, there are no restrictions on intended parents. Some states in the US, such as California, also have no limits.

Surrogacy laws in the USA are established at the state level, which means that each state regulates them individually, so the legal situation can sometimes vary from state to state.   Some states have written legislation regarding surrogacy, while others merely fall back on standard law provisions. In those states where surrogacy (both commercial and altruistic) is legal, appropriate contracts can be drawn up to allow intended parents to be recognised as legal parents.

States where surrogacy is legally permitted include California, Florida, Illinois, Arkansas, and Maryland. California also allows same-sex couples to be intended parents in all cases. If such contracts are also recognised by the courts in the country of performance with a corresponding tenor, the German court may also recognise them under § 107 I FamFG. In this case, lengthy adoption proceedings are avoided.

Our many years of experience show that surrogacy can be best implemented in California through cooperation with the relevant authorities and courts.

In contrast to the USA, Canada only allows altruistic surrogacy, i.e. the surrogate mother may not receive any compensation for carrying the child. However, she may be compensated for her expenses, which are limited to the costs incurred during the pregnancy.

However, due to a lack of parentage regulations, the surrogate mother can change her mind after the birth and claim the child as her own, which is why intended parents and surrogate mothers should sign a contract before the pregnancy. Since Ontario‘s surrogacy laws do not distinguish between same-sex and opposite-sex couples, it makes particular sense for same-sex couples to pursue surrogacy here.

In many countries in South America, surrogacy is not regulated by law, although it is tolerated and carried out in many countries. This creates a legally uncertain situation. While surrogacy is predominantly carried out for same-sex male couples, this is not the case for same-sex female couples or transgender people. Only Argentina does not make any distinctions regarding the family constellation of the intended parents and allows surrogacy regardless of this. Due to individual deviations in each case, legal advice is always recommended if surrogacy in a country in South America is being considered.

The legal challenge in surrogacy matters under German law is to recognise the parenthood of the intended parents in Germany. This is because, under German law, the woman who has given birth to the child is always considered the mother. Biological parentage is not relevant in this context. At Schlun & Elseven Rechtsanwälte, our German family lawyers are available to advise same-sex couples and other clients involved with foreign surrogacies regarding having their parenthood recognised in Germany.

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