Surrogacy Law in Germany: Legal Advice and Support

A surrogate mother is a woman who, by agreement, consents to carry a pregnancy—whether achieved through artificial or natural insemination or by the transfer of an embryo not genetically related to her—with the intention of placing the child with another individual or couple for permanent adoption or custody following birth.

According to German law, searching for and matching services with surrogacy women is prohibited. Section 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). Section 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 and the intended mother is standardised.

Apart from the legal situation in Germany, surrogacy is possible in other countries such as, for example, Greece, California, the USA, and Ukraine. To use such services, agencies abroad can be contacted. There will be crafted contracts with these agencies which state the rights and obligations of the intended parents and the surrogate mother. It is important to note that German law does not apply to these contracts since they are not within German jurisdiction. Instead, the jurisdiction of the respective state will apply.

Also, the rules surrounding compensation will differ depending on the chosen state. The legal difference will especially become relevant when it comes to recognizing the intended parents as the legal parents. But they may be of importance even before that, when, for example, the respective state law has different requirements for surrogate mothers and intended parents. The main hurdle in this context is to understand state law and work with it. In case of non-compliance, the entire process can be put in jeopardy.

The main hurdle in the progress of surrogacy abroad is the return with the child to Germany and the recognition as legal guardians of the intended parents in Germany. There are two options for establishing legal guardianship. It is possible to have a court ruling of the state where the surrogacy took place recognised by a German court or through a later realised adoption of the child. Already, for the return to Germany, a passport or a visa is required. The intended parents can be recognised as legal guardians by a court ruling of the state where the child was born.

The German court, however, will only recognise this when the legal requirements are met. For this, the child must have had its habitual residence in the respective state. If this is the case, getting the court ruling recognised by a German court is possible. An essential requirement has been the genetic descendance of the child from at least one of the intended parents.

In individual cases, the court will also consider the child’s best interests, which would be jeopardised if the child’s provision could not be ensured. Thus far, the court’s rulings regarding this matter have all had individual circumstances and, therefore, separate legal decisions, meaning that consistent case law has not been established. However, if the legal guardianship is not based upon a court ruling of the foreign state where the surrogate mother has given birth, receiving the legal guardianship will follow German law. In this case, adoption after surrogacy will be the only option.

For the adoption, it is vital to have the father recognised as a legal guardian first. The German embassies in the respective country where the surrogacy was performed are responsible for these documents. It is important to note that a simple agreement with the surrogate mother is not sufficient. Such an agreement does not hold any legal effect. This agreement must be legally acknowledged. If this is the case, receiving the documents necessary for the return to Germany with the child is possible.

Recognising the father as a legal guardian is the easier case. According to German law, the legal father is the man who is married to the woman at the moment she gives birth to the child. Insofar as the surrogate mother is not married – and it is therefore recommended to only choose surrogate mothers who are not – it is possible to have the paternity legally recognised even before birth.

In contrast to acknowledging paternity, the legal acknowledgement of the mother is more challenging under the German legal framework. According to German law, the woman who gives birth to the child is the legal guardian of the child. So even in the case of surrogacy, the surrogate mother is then the legal guardian of the child. It does not matter that she is not the biological mother.

A possible solution to this is to adopt the child after the surrogacy. If the intended father has already been recognised as the legal guardian, the intended mother can become the second legal guardian through adoption. However, another legal hurdle might occur during the adoption process, which depends strongly on the individual case.

In the past, some courts have argued against such adoptions with the reasoning of a statute that technically does not allow the adoption of a child when the reception of this child was paid for. Historically this statute was written to prevent child trafficking. Other courts argue that surrogacy does not fall under this statute and, therefore, is not a case in point. Furthermore, the argumentation line about the child’s best interests is considered here, too. Preventive considerations are not to outweigh the child’s best interests. As the child is subjected to a situation it has been born into, it is of greater importance to protect its best interests.

Circumstances that must be considered in each individual case are:

• to which point of time the child has lived with the intended parents,
• if there already is a legal acknowledgement of the paternity,
• how fast the intended parents have returned to Germany with the child, and
• in how far the family background has established a good environment for the child.

It is not possible to give an overall general statement. Regarding surrogacy, it will depend on the jurisdiction of the country where the surrogacy was performed, as well as the individual circumstances that follow the birth. To achieve the best possible outcomes and to be fully prepared it is advisable to seek legal advice.

Despite the legal situation in Germany, families that live in Germany still have the option to have surrogacy performed abroad. This process contains multiple steps, each with its own legal hurdles. In finding and assignment abroad the respective legal frameworks regarding surrogacy must be considered. For the return to Germany with the child, documents must be present that allow the intended parents to enter the country with the child. Back in Germany, the acknowledgement of legal guardianship may face some hurdles concerning maternity which can be established through an adoption. However, the success of such an adoption cannot be guaranteed. Furthermore, there is the option to have both parents recognised as legal guardians directly in front of the court abroad which then can be recognised by German law.

Legal issues depend on individual circumstances for all steps, and comprehensive legal assistance should be considered. If you are considering surrogacy, the German family law team at Schlun & Elseven Rechtsanwälte is ready to support you every step of the way.