The current war of aggression by Russia against Ukraine is also showing its devastating effects in other countries, including Germany. On the one hand, some babies of surrogate mothers have already been born amidst the destruction in Ukraine. Terrifyingly, however, there are currently few possibilities to bring the babies out of the country without considerable risk or to hand them over to the intended parents.
On the other hand, there is now also the possibility that pregnant Ukrainian surrogate mothers will flee the war in their home country and come to, for example, Poland or Germany. But then the question arises: what happens when the child is born here? In Germany (as well as in Poland and other countries), surrogacy is prohibited, unlike in Ukraine. What happens to the surrogate mother when she gives birth to the child and delivers it to the intended parents? What happens to the child? And what happens to the intended parents? Who is legally considered the “child’s parents “, and are the parties involved liable to prosecution?
It is a delicate situation with many questions in every respect. The following is an overview of the legal aspects of this situation.
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German Law: Prohibition of Surrogacy
In Germany, surrogacy is prohibited. According to § 1 para. 1 no. 7 German Embryo Protection Act (ESchG), it is a criminal offence to perform artificial insemination on a woman who is willing to permanently leave her child to a third party after birth (surrogate mother) or transfer a human embryo to her.
In addition, § 13c Act on Adoption Placement and Support and the Prohibition of Surrogacy Placement (AdVermiG) also prohibits surrogate mother placement. Under § 14b (1) & (2) AdVermiG, anyone who engages in surrogate mother placement or receives a financial advantage for surrogate mother placement or allows themselves to be promised such an advantage is liable to prosecution.
Under these provisions, however, neither the surrogate mother herself nor the intended parents can be liable for prosecution. This is because they neither carry out artificial insemination (§ 1.1 no. 7 ESchG) nor act as intermediaries (§ 14b.1, 2 AdVermiG). In their case, at most, a (no less serious) criminal liability for child trafficking could come into consideration under § 236 (1) German Criminal Code, which reads as follows:
“Whoever permanently abandons his child who is not yet eighteen years of age or his ward or foster child who is not yet eighteen years of age to another with gross neglect of the duty of care or upbringing, and in so doing acts for remuneration or with the intention of enriching himself or a third party, shall be punished with imprisonment for not more than five years or with a fine. Likewise, anyone who, in the cases referred to in the first sentence, permanently takes in the child, ward or foster child and grants remuneration for it shall be punished.”
Contrary to what is sometimes stated in various forums and information publications, such punishability should nevertheless be ruled out as a rule. The law expressly requires a “gross neglect of the duty of care and upbringing“. This neglect cannot be seen solely in the handing over of the child nor in the granting or acceptance of remuneration. Instead, exceptional circumstances must be present that cause the act to be objectively and subjectively serious.
This requirement for “exceptional circumstances” is ruled out in those situations in which the child’s welfare is less endangered by the voluntary relinquishment of the child to the intended parents than if the child remained with the surrogate mother. This situation will usually be the case – the intended parents want the child, want their best interests and will usually be financially well off or better off than the Ukrainian surrogate mother.
The surrogate mother will regularly learn in advance the seriousness of the intended parents’ desire for a child and their living conditions. Thus, she can no longer be accused of a gross breach of duty, and criminal liability is ruled out for both sides. Instead, this situation is comparable to that of a mother consenting to adoption who releases her baby after birth (Federal Court of Justice, order of 10.12.2014, XII ZB 463/13, margin no. 49 f. = BGHZ 203, 350).
Although this does not entirely rule out criminal liability, it is unlikely to be the case as a rule.
Parent-Child Relationship in Germany
In German law on parentage, a distinction is made between biological/genetic parentage on the one hand and legal parentage or legal assignment on the other. Thus, the biological parents can also be the legal parents simultaneously, but they do not have to be.
Maternity is clearly and unambiguously regulated in § 1591 BGB. It states:
“The mother of a child is the woman who gave birth to it.”
Due to the prohibition of surrogate motherhood, no other legal assignment can initially be considered. German law does not recognise a maternity challenge. Therefore, only the route via an adoption procedure (§§ 1741 – 1772 BGB) is available. Even if the child born to the surrogate mother is genetically descended from the intended mother, there is no other possibility under German law. Only by adoption can another woman assume legal maternity with all rights and obligations.
Paternity is decisively regulated in § 1592 BGB, which reads as follows:
“The father of a child is the man
- who is married to the mother of the child at the time of birth,
- who has acknowledged paternity or
- whose paternity has been judicially established according to section 1600d or section 182(1) of the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction.”
Accordingly, the presumption under No. 1 applies in principle, according to which the mother’s husband is also the legal father. If the mother is unmarried, the child has no father from a purely legal point of view. However, under No. 2, there is the possibility of acknowledging paternity within the meaning of § 1594 BGB, which is also admissible before birth. On the other hand, it is ineffective as long as paternity exists elsewhere. This paternity claim would first have to be eliminated, which can be done by a challenge to paternity (§§ 1599 ff. BGB). Finally, there is also the possibility of a judicial determination of paternity (§ 1600d BGB), which can usually be established with certainty by an expert opinion on parentage. In addition, there is also the option of adoption, which can also establish a legal paternity relationship.
Therefore, the legal assignment of paternity is not as clear and unambiguous as that of maternity. In particular, it should be noted that it is not unusual and, above all, not alien to the German legal system for biological and legal paternity to diverge.
Recognition of Foreign Surrogacy in Germany
German courts have repeatedly dealt with questions of recognition of foreign parent-child relationships in the past. Among other things, this has also involved the question of how the parentage of a child born abroad in the context of legal surrogacy can be determined or recognised under German law.
In most countries where surrogacy is permitted, it is legally possible for not the surrogate mother and (if applicable) her spouse but the intended parents to be entered in the birth register and the child’s birth certificate. This action makes them the legal parents of the newborn. On the other hand, this procedure is ruled out in Germany, as shown. This raises the question of whether such a foreign decision can also be recognised in Germany, with the consequence that the intended parents are also the mother and father of the child under German law.
This question is highly complicated and is sometimes judged differently in court decisions and the legal literature. The circumstances of the individual case are often of decisive importance. Ultimately, several supreme court decisions of the Federal Court of Justice can be found that deal with the questions raised. The following decisions are likely to be of particular importance.
Federal Court of Justice, December 10, 2014 – XII ZB 463/13 = BGHZ 203, 250.
Thus, in the 2014 decision, the Federal Court of Justice ruled that (subsequent) recognition of the legal relationship of the intended parents may be possible for a child born abroad and carried by a surrogate mother. This situation is the case if there is a foreign court decision that establishes this relationship. Such a court decision is amenable to recognising the relationship under § 108 FamFG. Thus, if a foreign court establishes the legal relationship of the intended parents, this court decision must, in principle, be recognised in Germany. Therefore, it means that they are also the child’s mother and father under German law.
An exception is only to be assumed if there is a violation of the so-called “ordre public proviso”. However, this is only applicable and relevant if the result of such recognition contradicts the basic ideas of German regulations and the concepts of justice contained therein to such an extent that it appears unacceptable according to domestic concepts.
The Court has decided that this is not the case if at least one of the intended parents is genetically related to the child, i.e. if either the intended mother has had her own egg fertilised and implanted in the surrogate mother or the intended father has made his genetic material available for fertilisation. In the case mentioned above, there is the additional aspect that only the intended mother, not the surrogate mother herself, is genetically related to the child born. In the case to be decided, it was the intended father who, according to the court findings, was the child’s genetic father. At the same time, however, there was also no genetic connection between the surrogate mother and the child concerned.
Considering all the fundamental rights of the persons involved, in this constellation, in particular, the child’s best interests spoke in favour of rather than against recognition of the relationship (paras. 44, 54 ff.).
The decisive criteria, in this case, were, therefore:
- the genetic connection of at least one of the intended parents with the simultaneous absence of a genetic link between the surrogate mother who carried the child to term and the child born, and
- the existence of a foreign court decision in which the maternity and paternity of the intended parents were established.
Federal Court of Justice, 20.03.2019, XII ZB 530/17 = BGHZ 221, 300.
In contrast, the same Court ruled differently in 2019. In that case, the initial situation was similar to the case described above but not identical. Here, too, the German intended parents sought recognition of maternity and paternity under German law for the child (who was born in Kyiv) they had carried to term by a Ukrainian surrogate mother. In this case, the surrogate mother in Ukraine had an egg fertilised with the sperm of the German husband from the wife of the surrogate mother. Consequently, there was a genetic relationship to the intended parents but not the surrogate mother.
However, in contrast to the previous case, the Federal Supreme Court ruled that recognition under § 108 FamFG was not possible. It reasoned that there was no foreign court decision establishing the maternity and paternity of the intended parents. Instead, there was only an entry in the Ukrainian birth register, supported by a birth certificate. Unlike a judicial declaratory decision, such an entry was to be treated functionally in the same way as an entry in a German register of civil status. However, this did not constitute a decision capable of recognition within the meaning of § 108 Family Proceedings Act (FamFG), so in this case, there could be no recognition under German law.
The German intended father had already acknowledged paternity before the child’s birth – as is often done in practice – with the surrogate mother’s consent, which is why he was indisputably regarded as the (legal) father under German law. Consequently, the question of who is now considered the (legal) mother of the child was problematic: the Ukrainian surrogate mother or the German intended mother.
This question largely depended on which law was to be applied: Ukrainian law or German law. The essential norm for clarifying this question is Article 19 (1) of the Introductory Act to the German Civil Code (EGBGB). According to this, the decisive factor is where the child’s “habitual residence” is located. The Court’s Senate held that the habitual residence was in Germany despite the birth in Ukraine, so German law applied.
It justified this decision by stating that it was planned from the outset that the intended parents would leave for Germany with the child shortly after the birth and wanted to live there permanently at the residence of the intended parents. Thus, it was already clear that only a temporary stay of the child in Ukraine was planned at the time of the birth. This could not constitute a “place of habitual residence”. Moreover, the German nationality of the intended parents was already such a strong link to Germany that German law was directly applicable for this reason alone (para. 25).
Under German law, i.e. under § 1591 BGB, the mother of a child is the woman who gave birth to it, i.e. the surrogate mother. Accordingly, the surrogate mother must be entered into the German register of births. The fact that the surrogate mother rejects legal motherhood is irrelevant due to the clear legislative interpretation in § 1591 BGB.
The only option left to the German intended mother was to refer to adoption proceedings.
The fact that there was only an entry in the Ukrainian birth register, but no court decision, was therefore of decisive importance here. This ultimately led to the failure of recognition under § 108 FamFG despite the genetic relationship of the German intended parents. Furthermore, the Senate rejected foreign surrogacy and thus the circumvention of the German prohibition rules by interpreting the “habitual residence”. If it is planned from the outset that the child will leave the country of birth shortly after birth and be brought to Germany, German law (nevertheless) applies – provided that there is no foreign court decision. However, this can be both time-consuming and costly – in contrast to a mere entry into the foreign birth register.
Case: Birth of the Child in Germany
Based on these regulations and Supreme Court rulings, the answer to the question of who is the legal mother in a case in which a legal surrogate mother agreement was made under Ukrainian law, but the child is now born here in Germany due to the surrogate mother’s flight from the war, is unambiguous:
The mother is the surrogate mother, according to § 1591 BGB.
The German intended mother will not be able to obtain the legal registration as the mother in the German birth register despite the agreement and that she and the intended father are genetically related to the child. This is clearly opposed by our precise legal regulation and legislative evaluation.
The only remaining option is adoption proceedings.
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If you find yourself in a situation where such a scenario is conceivable or has already occurred, please do not hesitate to contact us. Our family law experts will assist you in any way possible. It is a highly stressful situation, especially emotionally, in which you can count on the help and support of our legal experts. They will provide you with comprehensive advice on all the necessary legal steps, initiate them and accompany you throughout the proceedings.