Surrogacy Law in Germany

The world’s first surrogacy was about 38 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 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 child’s mother 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 considered 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, Section 13a AdVermiG states:

“A surrogate mother is a woman who, on based on an agreement, is willing,

1. to undergo artificial or natural insemination, or
2. 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.”

In many countries, surrogacy is prohibited. However, if 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. The intended parents of the child often accompany surrogate mothers to medical appointments.

However, before the surrogate mother becomes pregnant, medical tests are carried out on her and 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, which also vary from country to country. Standard regulations are, for example, that the surrogate mother must be of legal age. Other regulations, depending on the country, are that she must not smoke or drink alcohol during the pregnancy or that she has already given birth to at least one healthy child. The requirements that the future parents of the child must meet also depend on the legal situation in the country in which a surrogacy agency is commissioned. The prerequisite of a medical indication or a marriage between the intended parents is possible. The requirements for the intended parents often result in further restrictions for same-sex couples, as in some countries where an existing marriage is a prerequisite, same-sex marriage is not permitted or recognised.

Surrogacy in Germany is referred to as “surrogate motherhood” in the Adoption Placement Act. The second section of this law (Sections 13a – 13d AdVermiG) regulates surrogate motherhood and the seeking of surrogate mothers in Germany. It states that public searches for surrogate mothers and surrogate mother placements are 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.

As it is not legally possible to have a child with the help of a surrogate mother in Germany, many couples travel abroad. Particularly popular destinations for surrogacy are Greece, the USA, Mexico, Canada, and Georgia.

The birth certificate issued abroad still needs to be recognised in Germany. There are two different procedures for certifying the authenticity of the foreign birth certificate: legalisation and apostille. Legalisation is the basic procedure, while the apostille is a simplified procedure between countries that have signed the Hague Convention.

Of the usual foreign destinations for surrogacy, all have signed the Hague Convention, except Canada. Accordingly, the simplified apostille procedure is sufficient for the legalisation of birth certificates from Greece, the USA, Mexico, and Georgia. For Canadian birth certificates, a more complex legalisation procedure is required.

A distinction must be made between the authentication of the birth certificate and the recognition of parenthood. Just because the certificate has been declared authentic does not mean that the data shown on the certificate is also valid under German law. Recognising parenthood in Germany and, under certain circumstances, the child’s entry into the country can involve several legal difficulties.

The question of maternity for the child born to the surrogate mother is complicated. Under German law, the woman who gives birth to the child is always the mother. This means that the intended mother is not the child’s legal mother. Difficulties also arise with the father or same-sex intended parents regarding recognising parenthood, so adoption proceedings are often necessary to assume the role of a parent under German law.