Surrogacy in Germany: Legal Advice for Intended Parents

Surrogacy is not banned outright in Germany, but it is effectively impossible. German surrogacy law makes it a criminal offense to arrange a surrogacy or to perform the medical procedures it requires, while the surrogate mother and the intended parents themselves are not punished.

German law defines a surrogate mother (Ersatzmutter) by what she agrees to do. She undergoes assisted reproduction or natural insemination, or has an embryo that is not genetically hers transferred to her. She carries the pregnancy and then hands the child over to others permanently after birth, whether for adoption or another long-term arrangement (Section 13a of the Adoption Placement Act, Adoptionsvermittlungsgesetz or AdVermiG).

Sections 13a to 13d AdVermiG prohibit arranging a surrogacy, as well as publicly searching for or offering surrogate mothers or intended parents, for example through newspaper advertisements. Anyone who arranges a surrogacy commits a criminal offense under Section 14b AdVermiG. The penalty increases with the level of involvement:

Doctors also face criminal liability. Under Section 1(1) No. 7 of the Embryo Protection Act (Embryonenschutzgesetz, ESchG), it is an offense to perform the assisted reproduction or embryo transfer that a surrogacy requires.

The surrogate mother and the intended parents themselves are not punished under either law, as both statutes expressly exempt them (Section 14b(3) AdVermiG and Section 1(3) ESchG). German law therefore does not ban surrogacy as such. It bans arranging it and carrying it out medically in Germany, which in practice makes surrogacy impossible within the country.

For intended parents living in Germany, this also means that having a child through surrogacy abroad does not expose them to prosecution at home. The legal difficulties arise later, when bringing the child to Germany and having their parenthood recognized.

The law of the country where the surrogacy takes place decides who can access it and which documents the intended parents receive, and those documents largely decide what happens in Germany afterward. Surrogacy is permitted and practiced in a number of countries, but the rules on who can access it vary widely.

In the United States, the rules differ from state to state, and several states, including California, expressly permit surrogacy. Greece was long one of the few European options, but this has changed. Following a recent amendment to Greek law, a court will only approve a surrogacy arrangement if both the intended mother and the surrogate mother are legally resident in Greece. For couples living in Germany without Greek residence, Greece is therefore no longer a realistic option. Surrogacy agencies also continue to operate in Ukraine, although the security situation there means each case calls for a particularly careful legal and practical assessment.

Intended parents usually sign contracts with an agency that set out their own rights and obligations and those of the surrogate mother. These contracts are governed by the law of the country where the surrogacy takes place, not by German law. Countries also differ in the compensation paid for surrogacy services.

The legal differences between countries matter most at the end of the process, when German authorities decide whether to recognize the intended parents as the child’s legal parents. They can be decisive from the outset too, for example where local law sets specific requirements for surrogates or intended parents. Access to surrogacy also depends on the intended parents’ family situation. Some countries only permit it for a married man and woman, while others also open it to same-sex couples or single people.

Planning around the local rules is the first real challenge, and failing to comply with them can put the entire process at risk. In our experience, intended parents often underestimate the contract with the foreign agency. Typical gaps include the surrogate mother’s rights during the pregnancy, what happens in the case of a multiple birth, and which court will ultimately decide on parenthood. We recommend having these points reviewed by a lawyer before signing.

The same problems come up again and again in our advisory work at Schlun & Elseven Rechtsanwälte:

• Signing a contract before checking whether the destination country issues a court decision establishing parenthood or only enters the intended parents in a birth register. A register entry is generally not enough for recognition in Germany.
• Overlooking the genetic link. If neither intended parent is genetically related to the child, recognition in Germany may be ruled out, and adoption should be planned from the start.
• Underestimating how long German embassies and consulates take to issue the child’s passport and entry documents.
• Leaving the formalities for foreign documents too late. Court decisions and birth certificates usually need an apostille, an international certificate confirming that a document is authentic, or legalization by the German embassy, as well as a certified translation, before German authorities will accept them.

Most of these delays can be avoided by clarifying these points with a lawyer before signing anything with an agency. The earlier we review your plans, the more options remain open.

Before parenthood can be dealt with in Germany, the child needs documents to travel. Whether that means a German passport or a visa depends on the child’s citizenship, and that in turn depends on who the child’s legal parents are.

A child acquires German citizenship at birth if at least one legal parent is German (Section 4 of the Nationality Act, Staatsangehörigkeitsgesetz or StAG). In surrogacy cases, this usually runs through the intended father. Once his paternity has been legally established, typically by acknowledging paternity at the German embassy or consulate in the country of birth, the child is a German citizen and can receive a German passport. There is one important exception: if the German parent was born abroad after December 31, 1999, and lives abroad, the child generally only becomes German if the birth is registered in Germany within one year. That application can be made through the German embassy or consulate. In some countries, such as the United States, the child also acquires that country’s citizenship at birth and may be able to travel on its passport.

If neither intended parent is German, the child cannot acquire German citizenship through them. The child then needs a visa to enter Germany and a residence permit to stay, usually on the basis of family reunification. Whether the child can join the family depends on the intended parents’ own residence status and on whether their parenthood is recognized. The residence permit is issued by the local foreigners authority (Ausländerbehörde). Different rules apply if one intended parent is a citizen of another EU country living in Germany: the child’s right to live here then generally follows from EU free movement law rather than from family reunification. In all of these cases, our family lawyers work alongside our immigration lawyers, so that parentage and residence questions are handled together.

The central issue in any surrogacy abroad is whether German law will treat the intended parents as the child’s legal parents. There are two routes: recognition of a court decision from the country where the surrogacy took place, establishing both intended parents as parents, or a later adoption of the child.

1. Review the agency contract and the destination country’s law before signing.
2. Have the intended father formally acknowledge paternity at the German embassy or consulate, where possible before the birth.
3. Obtain the child’s German passport or a visa for entry to Germany.
4. Seek recognition of the foreign court decision, or apply for stepchild adoption in Germany.

Parenthood established abroad only carries over to Germany if German law allows it. Two conditions apply. First, the child must have acquired habitual residence in the country of birth, meaning that the child’s life was centered there for a time. Second, there must be a foreign court decision; a birth certificate or birth register extract is not enough. If both are met, the foreign decision can be recognized in Germany. This happens either in a separate recognition procedure before the family court or when a German registry office (Standesamt) registers the birth.

A registry entry based only on a foreign birth certificate does not settle the matter. Without a court decision that can be recognized, the entry can later be corrected to name the surrogate mother as the child’s mother, as the Federal Court of Justice (Bundesgerichtshof, BGH) confirmed in a case involving a surrogacy in Ukraine (BGH, decision of March 20, 2019, XII ZB 530/17).

Recognition is refused if it would be manifestly incompatible with essential principles of German law (Section 109(1) No. 4 of the Act on Proceedings in Family Matters, FamFG). Here, the child’s genetic link to at least one intended parent is decisive. The BGH first confirmed this in a Californian surrogacy case. It recognized the Californian court decision because at least one intended parent was genetically related to the child (BGH, decision of December 10, 2014, XII ZB 463/13).

In 2026, the BGH decided the question it had left open: what happens when neither intended parent is genetically related to the child, for example where both egg and sperm came from donors. In these cases, recognizing the foreign decision will, as a rule, violate essential principles of German law, and recognition is refused. The intended parents must then adopt, which is the route German law provides for exactly this situation (BGH, decision of May 13, 2026, XII ZB 220/25). When choosing a country and agency, make sure at least one intended parent’s genetic link to the child is documented and can be proven.

If parenthood is not based on a decision from the country where the surrogate mother gave birth, German law determines who the child’s parents are. In that case, adoption is usually the only option. The father’s paternity should be established first. The German embassy or consulate in the country where the surrogacy took place is responsible for the relevant documents. A private agreement with the surrogate mother is not enough, as it has no legal effect. Paternity must be formally acknowledged in that country before the documents for the child’s entry to Germany can be issued.

Where adoption is needed, German courts have jurisdiction if the adopting parent or the child is German or habitually resident in Germany (Section 101 FamFG). Intended parents who live in Germany can therefore adopt here regardless of their nationality. A married couple can adopt jointly, and a single intended parent can adopt alone (Section 1741(2) BGB). If the surrogate mother does not take part in the German adoption proceedings, for example because she considers parenthood already settled under the law of her country, the court can replace her consent under certain conditions (Section 1748 BGB).

Establishing paternity is usually the more straightforward part. Under German law, the father of a child is the man who is married to the mother at the time of birth or who has acknowledged paternity (Section 1592 of the German Civil Code, Bürgerliches Gesetzbuch or BGB). If the surrogate mother is married, her husband is the legal father, which complicates matters considerably. If she is not married, the genetic intended father can acknowledge paternity before the birth, with her consent, by a declaration formally recorded by a notary or another authorized official.

The intended mother’s legal position is harder to secure. Under German law, the mother of a child is the woman who gave birth to it (Section 1591 BGB). In a surrogacy, that is the surrogate mother, regardless of genetics. The intended mother can usually only become a legal parent through stepchild adoption, once the intended father’s paternity has been legally established. The same route is generally open to the second parent in a same-sex couple. Stepchild adoption requires either marriage to the father or a stable, marriage-like partnership in a shared household, which is generally assumed after four years of living together (Sections 1741(2) and 1766a BGB).

Adoption after surrogacy abroad can raise further hurdles. Under Section 1741(1) sentence 2 BGB, a person who took part in an unlawful placement of a child for adoption may only adopt that child if this is necessary for the child’s welfare. Courts disagree on whether this stricter test applies to surrogacy at all. The BGH has made clear that the outcome should be the same either way: the child’s welfare always takes priority over general deterrence, and the fact that the intended parents used a surrogate cannot on its own be a reason to refuse an adoption (BGH, decision of May 13, 2026, XII ZB 220/25). In line with this, courts generally consider adoption necessary for the child’s welfare where the child has lived with the intended parents for some time and there is nothing to suggest the child’s care is not in its best interests. This applies regardless of whether the legal father is also the genetic father (Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main, decision of December 12, 2023, 2 UF 33/23).

Factors that courts take into account when deciding on parenthood include:

• whether the child is genetically related to either intended parent,
• how long the child has lived with the intended parents,
• whether paternity has been legally acknowledged,
• how quickly the intended parents moved or returned to Germany with the child, and
• the child’s family circumstances as a whole.

There is no general answer. The outcome depends on the law of the country where the surrogate mother lives and on the circumstances after the birth. We therefore recommend seeking legal advice as soon as you start considering surrogacy.

At Schlun & Elseven Rechtsanwälte, our family law team supports intended parents throughout a surrogacy abroad and the recognition process in Germany that follows. This includes:

• reviewing contracts with foreign agencies and surrogate mothers,
• coordinating with the relevant German embassies and consulates on acknowledging paternity and obtaining the child’s passport,
• assessing whether a foreign court decision can be recognized in Germany or whether stepchild adoption will be necessary, and
• representing you before registry offices and family courts.

International surrogacy matters often involve several legal systems at once. Where needed, we work with partner firms in the destination country, and where the child’s residence status is at stake, with our immigration lawyers. Many of our clients live outside Germany, so we advise in English and handle online every step that does not require an in-person appointment. Every matter is treated confidentially, and we work with a transparent cost structure, explaining any expected further costs at the outset. If you are considering surrogacy abroad or have already returned to Germany with your child, contact our family law team to have your situation reviewed.