Surrogacy in the USA

Surrogacy has become a significant option worldwide for couples with an unfulfilled desire to have children. German couples are also using surrogate mothers increasingly every year to realise their wish for a child. However, as surrogacy is not legally permitted in Germany, many couples travel abroad to realise this wish. The USA is a crucial point of contact for German couples. The fact that the USA is one of the leading countries when it comes to surrogacy has to do with its far-reaching legal options in at least some US States.

The Legal Situation of Surrogacy

“Surrogacy tourism” is so widespread because in many countries – not only in Germany – the realisation of surrogacy is prohibited. These bans exist for a variety of reasons. Where permitted, it is usually subject to strict restrictions – such as a medical indication (e.g., infertility of the woman or intended mother).

Some states in the USA have very liberal laws on surrogacy. California, for example, is one of the most progressive states in this respect. Surrogacy agreements are permitted under the Californian Family Code and can be confirmed by the courts. The authorisation of surrogacy is not restricted to heterosexual (married) couples. In addition, unlike many other jurisdictions, Californian law recognises the possibility of prenatal parentage orders. This guarantees the intended parents the legal assignment of the child to the intended parents even during the surrogate mother’s pregnancy, without the surrogate mother being legally listed as the mother. A genetic relationship between the intended parents and the child is not a prerequisite for the prenatal order. It is also possible if the sperm and the egg come from donors. The entry of the intended parents in the birth certificate (without naming the surrogate mother) is an essential legal safeguard for the intended parents, as it minimises potential uncertainties in connection with parenthood. In the case of subsequent certification in Germany, the surrogate mother may be re-entered on the birth certificate under certain circumstances, see BGH 20 March 2019 Ref. XII ZB 530/17. For this reason, the parental status of the intended parent who is not related to the child by blood must regularly be challenged in Germany.

More States in Favour of Surrogacy

California is not the only US state that deals openly with surrogacy. In addition to California, the following states have similarly liberal laws:

• Washington
• Idaho
• Nevada
• Colorado
• Pennsylvania
• Vermont
• Maine
• Connecticut
• New Hampshire
• New Jersey
• Delaware

Surrogacy is also permitted in other federal states but is subject to further restrictions in contrast to the states mentioned above. In some states, surrogacy is generally not permitted. On the other hand, other states have no legal regulations in this regard. These states are not recommended for intended parents, as without legal provisions, there is no certainty of obtaining parenthood for the child and, thus, rights to the child.

Recognition of US Birth Certificates || Recognition of Parenthood

Although parental rights have been secured by entry on the birth certificate, the intended parents must take additional steps after returning from the USA to clarify the affiliation to their child under German law. This includes notarising the birth certificate on the one hand and recognising parenthood on the other.

A certification procedure is required to recognise the birth certificate’s authenticity, and it is generally carried out by legalisation. As both the USA and Germany have signed the Hague Convention Abolishing the Requirement of Legalisation for Public Documents of 5 October 1961, documents can be certified using the simplified apostille procedure.

The German registry office recognises parenthood at the parents’ request, which can be a considerable legal challenge in many cases. In particular, the assignment of the intended mother to her child is legally difficult, as German law generally assigns the role of mother to the woman who bears the child, and there are no exceptions to this rule. In many cases, legal proceedings before German courts are therefore necessary to obtain the registration of parenthood. Should such court proceedings fail, a lengthy adoption procedure would be required to obtain the attribution to the child.

Successful Cases of German Intended Parents

German courts have already ruled several times on the parenthood of intended parents who have had a child via surrogate mother in the USA – which also shows that the USA has been a popular surrogacy country for years.

The judgement of the German Federal Court of Justice from 2014 is particularly relevant, in which the court stated that the fact that a foreign decision in the case of surrogacy assigns the legal parental status to the intended or appointed parents does not in itself constitute a violation of German public policy if one of the intended parents – in contrast to the surrogate mother – is genetically related to the child.

This decision, which concerned a Californian surrogacy agreement, was followed by several other decisions that repeatedly referred to the statements of the German Federal Court of Justice. This was also the case in a recent court case won by our legal team lawyers, which concerned two intended fathers and their child born in Mexico by a surrogate mother.

This series of favourable decisions illustrates that German courts are increasingly inclined to support parental rights in the context of international surrogacy.

It is also worth mentioning that the current government has promised to review the current legal situation regarding surrogacy in Germany in their coalition agreement. To this end, a committee has been convened to examine the problems and arguments surrounding surrogacy and evaluate the legal situation in Germany. The outcome of the investigation remains to be seen.

Schlun & Elseven: Your German Family Lawyers

The decision in favour of surrogacy is complex and involves many legal aspects. Our family law experts are on hand to ensure your path to parenthood runs smoothly. The legal assessment of the feasibility of your desire to have a child is undoubtedly an emotionally stressful situation in which you can count on the help and support of our legal experts. We will inform you about the legal options in the USA and help you find the best possible solution for your situation. From legal advice and drafting contracts to representation in court, we are committed to ensuring that your rights are optimally protected and that you can successfully navigate the path to your desired child.