What Does Surrogacy Mean?
The world’s first surrogacy was about 36 years ago. In 1985, a British woman was the first surrogate mother to carry another couple’s child. A court later ruled that the child could stay with this couple – the intended parents.
From a medical perspective, surrogacy usually exists when a woman carries a child who is not genetically related to her. The so-called surrogate mother is then implanted with an artificially fertilised egg and carries the child for the woman or the couple genetically related to the child (the intended parents). It should be noted that there are different forms of surrogacy. There is the possibility described above, in which the surrogate mother is not genetically related to the child. However, there is also the form of surrogacy in which the surrogate mother acts as such and is also the mother of the child in biological terms. This form exists when the egg cell of the intended mother or a third independent donor is not used, but that of the surrogate mother is fertilised. It should be borne in mind that this type of surrogacy often involves legal difficulties.
From a legal point of view, surrogacy is defined in the Adoption Mediation Act (AdVermiG). Thus, § 13a AdVermiG states:
“A surrogate mother is a woman who, on based on an agreement, is willing,
- to undergo artificial or natural insemination, or
- to have an embryo not originating from her transferred to her or otherwise to carry it to term
and to give the child after birth to third parties for adoption as children or for other reception permanently.”
Procedure and Requirements for Surrogacy
In many countries, surrogacy is prohibited. However, if it is allowed, it is often facilitated by agencies or clinics. Through such agencies, for example, contact is established between the surrogate mothers and the intended parents. If the couple (intended parents) decides in favour of surrogacy, contact is usually maintained even during the surrogate mother’s pregnancy. It often happens that surrogate mothers are accompanied by the intended parents of the child to medical appointments and the like.
However, before the surrogate mother becomes pregnant, medical tests are carried out on her as well as on the intended parents. Once it has been ensured that there are no medical concerns regarding surrogacy, the surrogate mother receives the fertilised egg. According to the agencies, gestating women receive intensive medical care during this time. The intended parents are informed about the results of any examinations. After the birth, the child is left to the intended parents, as contractually agreed beforehand.
There are various conditions attached to surrogacy. During pregnancy, for example, the surrogate mother is not allowed to smoke or drink alcohol. Besides, the surrogate mother must be of age and have given birth to at least one healthy child. The requirements that the child’s intended parents must fulfil depend on the legal situation of the country in which an agency is commissioned with a surrogacy.
Prohibition of Surrogacy in Germany
Surrogacy in Germany is referred to as “surrogate motherhood” in the Adoption Placement Act. The second section of this law (§§ 13a – 13d AdVermiG) regulates surrogate motherhood and the seeking of surrogate mothers in Germany. It states that the public search for a surrogate mother and surrogate mother placement are prohibited. § § 14b AdVermiG regulates the penal provisions in case of non-compliance with the law. Accordingly, the mediator is liable to prosecution, but not the surrogate mother or the intended parents.
Furthermore, the medical practitioner who assists in surrogacy is not exempt from punishment. This is regulated by the Embryo Protection Act (ESchG). § 1 ESchG states that anyone who abuses reproductive techniques is liable to prosecution and a custodial sentence of up to three years or a fine. Here, too, the impunity of the surrogate mother as well as the intended mother is standardised.
Recognition of Parenthood in Germany
Some couples consider surrogacy despite the official ban in Germany. However, since this may not be carried out in Germany for legal reasons, the possibility of carrying it out abroad does not seem to be excluded. For example, surrogacy is legal in Ukraine, Greece and other countries under certain conditions. However, this can cause some legal difficulties with regard to the recognition of parenthood in Germany and possibly also with regard to the entry of the child to Germany.
The recognition of parenthood is a major issue in such cases. In such cases, the facts of the situation are crucial when determining the legal status of the individuals. If you are involved in such a dispute or require straightforward legal counsel relating to a specific matter, please do not hesitate to contact our team of lawyers for family law using our contact details below.
Who are the Child’s Parents under German Law?
If a German couple decides to engage in surrogacy abroad, it is important to ask, especially with regard to maternity, which woman is ultimately the legal mother of the child according to German law. From a civil law perspective, the mother is the one who gave birth to the child. Accordingly, the surrogate mother is also the mother of the child from a legal perspective.
According to German law, the father of a child is in principle the person who is married to the mother of the child at the time of birth. Accordingly, if the surrogate mother is married, her husband would be the child’s legal father under German law. However, this paternity can be challenged by the genetic father. As a result, the paternity of the biological father can be established in court. Our family lawyers also advise on matters relating to the recognition of paternity in Germany.
If, on the other hand, the surrogate mother is unmarried, the paternity of the man genetically related to the child is easier. With the surrogate mother’s consent, paternity can be acknowledged. In this way, the child also acquires German nationality by birth (cf. §§ 3 para. 1 no. 1, 4 para. 1 Nationality Act (StAG)).
If the parents now wish to travel back to Germany with the child, an entry visa or a German passport is required. In order to obtain one of these documents, the parents must go to the German embassy in the country where the surrogacy was carried out and present the necessary documents, such as the man’s acknowledgement of paternity.
Parenthood through Adoption
In Germany it is also possible to become the legal parents of a child through adoption. It should be noted that an agreement on the adoption of the child previously concluded between the future parents and the surrogate mother is not effective under civil law in Germany. However, if the paternity of the genetic father has already been recognised, his partner has the option of adopting the child. If the family court were to agree to this adoption, this would have the consequence that the intended mother would become a legal parent under German law. The decisive factor for the court’s decision is that the adoption is not contrary to the best interests of the child.
For further information on German adoption law visit our page on the issue or contact Schlun & Elseven Rechtsanwälte directly. We will be happy to assist you and advise you on all matters of family and adoption law.
Parenthood based on a Foreign Court Decision
If surrogacy was ultimately carried out in a country where it is permitted, the intended parents can obtain their legal status as such there through court and administrative decisions. Accordingly, under the foreign country’s law, parenthood would exist by virtue of the court decision. Now the question arises whether this decision is recognised in Germany at all. Only in the event of recognition do the intended parents also become the child’s legal parents under German law.
An individual case decision by a German court is required for the recognition of a foreign court decision on the parenthood of the intended parents. The decisive factor is the actual genetic relationship of the child with at least one parent. If one parent is actually biologically related to the child and the surrogate mother is not, this can lead to a positive decision by the court.
In particular, circumstances concerning the best interests of the child are considered in individual cases. If the parenthood of the surrogate parents was determined by a foreign court, this can in turn lead to the statelessness of the child. This is because the court decision does not give the child the nationality of the surrogate mother, but under German law it does not automatically receive German nationality either. This would only be granted to the child if, as described above, paternity had already been recognised. The statelessness of a child considerably endangers its well-being. Therefore, in such a case, the German court decides to recognise a foreign court decision as a matter of priority.