Surrogacy – Legal Aspects and Classification
Concept and Definition of Surrogacy
The term “surrogacy” refers to the contractually agreed carrying of a child by a woman, who after birth hands over the child to the intended parents or commissioning parties involved in the contract. This form of surrogacy is also referred to as surrogacy in the narrower sense and is particularly controversial from a legal standpoint, as it touches upon both ethical and legal issues.
In German usage, a distinction is made between altruistic and commercial surrogacy. Surrogacy generally refers to the paid carrying of a child, in which the intended parents provide financial compensation to the surrogate mother.
Historical Development and Conceptual Distinction
The discussion about surrogacy intensified from the 1980s with the development of reproductive medical technologies such as in vitro fertilization (IVF). Advancing medical possibilities made it possible for women to give birth to children for others, regardless of their own fertility and genetic relationship.
Surrogacy must be distinguished from adoption and egg donation. In contrast to traditional adoption, surrogacy usually involves a prior contract between the parties involved, while egg donation merely involves the transfer of genetic material.
Legal Regulations of Surrogacy in International Comparison
Surrogacy under German Law
In Germany, surrogacy is strictly prohibited under the Embryo Protection Act (§§ 1-13 ESchG) as well as the Adoption Placement Act (AdVermiG) in conjunction with the Civil Code (BGB). § 1 ESchG prohibits the manipulation and creation of an embryo for purposes other than inducing a pregnancy in the woman from whose egg cell the embryo originates. The commercial arrangement of surrogate mothers is a criminal offense according to § 13c AdVermiG.
Under German law, the mother of a child is always the woman who gave birth to the child (§ 1591 BGB). The genetic descent is irrelevant. A contractual agreement between the surrogate mother and intended parents, by which the latter are recognized as parents, is legally invalid. Entry of other parents in the birth certificate is only possible through adoption of the child.
Surrogacy in Other Countries
In some countries, including Great Britain, the Netherlands, Greece, and several US states, altruistic surrogacy is permitted under strict conditions. Commercial surrogacy, on the other hand, is legal in countries such as Russia, Ukraine, and some US states, provided the conditions under the respective legislation are met.
Other countries, such as Austria, Switzerland, France, and Italy, have completely prohibited carrying a child for third parties, making both the performance and arrangement subject to criminal penalties.
International Conflicts and Conflict of Laws
The differing legal regulations mean that couples from countries with restrictive rules, such as Germany, turn to services in countries with a more liberal approach. This raises complex questions of international private law and the recognition of parentage, in particular regarding the parentage and nationality of children born via surrogacy abroad.
Criminal Consequences of Surrogacy
Under German law, arranging a surrogate mother, as well as offering, accepting, and soliciting such services, is a criminal offense (§ 14 ESchG; § 13c AdVermiG). Penalties range from fines to imprisonment.
The act of surrogacy itself by the woman carrying the child is not punishable in Germany, provided there is no commercial purpose. However, medical professionals who perform acts in connection with surrogacy may be criminally liable.
Civil Law Consequences: Parenthood and Custody
Under German law, the mother of a child is always the woman who gave birth to the child, regardless of contractual agreements or genetic parentage (§ 1591 BGB). The legal father is usually the husband of the birth mother or the man who acknowledges paternity (§ 1592 BGB). Intended parents can only take the child in through adoption.
Conflict of laws gives rise to difficulties when children born abroad are brought to Germany and their parents seek legal recognition as their parents. The recognition of foreign birth certificates and the entry of the intended parents as legal parents in German documents are governed by international family and child law.
Ethics and the Debate about the Admissibility of Surrogacy
Surrogacy is the subject of social and ethical debates. Critics warn against the commercialization of the human body and the endangerment of the rights of surrogate mothers and children. Proponents point to the opportunities for childless couples to fulfill their wish for children.
Prospects and Current Developments
The admissibility of surrogacy continues to be a contentious issue in legislative policy in Germany and Europe. While international case law, such as the European Court of Human Rights, has in individual cases called for the recognition of parenthood acquired abroad, the question of legal approval in Germany remains unresolved.
Given the developments in reproductive medicine and ongoing globalization, it is expected that the discussion surrounding the legal framework and recognition of surrogacy will continue to grow in importance.
References
- Embryo Protection Act (ESchG), §§ 1-13
- Adoption Placement Act (AdVermiG)
- Civil Code (BGB), §§ 1591-1592
- Federal Centre for Health Education: Starting a Family with the Help of Third Parties: Options and Legal Aspects
- German Ethics Council: Report “Legal Options and Ethical Problems of Surrogacy”
Frequently Asked Questions
Is surrogacy legally permitted in Germany?
Surrogacy, also referred to as commercial surrogacy, is explicitly prohibited in Germany by the Embryo Protection Act (§ 1 para. 1 no. 7 ESchG) and the Adoption Placement Act (§ 13b AdVermiG). This means that both the arrangement and the execution of surrogacy agreements are punishable in Germany. Criminal liability applies to the physicians and agents involved, as well as to the intended parents and the surrogate mother herself. Even advertisements or offers in this context can be prosecuted. Legally, it is important to emphasize that not only the commercial but also the altruistic form of surrogacy is prohibited as soon as arrangement or medical intervention is involved. The prohibition serves to protect the surrogate mother and the welfare of the child, and is based on ethical and legal considerations.
What legal consequences threaten violations of the surrogacy ban?
Violations of the prohibition against surrogacy are prosecuted under criminal law and can be punished with imprisonment of up to three years or a fine. In addition to criminal consequences, a violation can also have civil law effects: contracts with surrogate mothers are considered immoral and are void under § 138 BGB. This means that none of the parties can derive legal claims from such a contract, for example, for the surrender of the child or for payment of compensation or expenses. In addition, physicians risk disciplinary consequences up to the revocation of their medical license.
What is the legal situation if surrogacy is carried out abroad?
If intended parents residing in Germany become parents abroad—such as in countries where surrogacy is permitted—of a child born through surrogacy, complex legal problems arise. German authorities generally do not recognize parenthood acquired abroad without further examination; in particular, the legal attribution of motherhood and fatherhood proves difficult. The surrogate mother is considered the legal mother under German law (principle of birth as legal motherhood); the intended mother is usually only recognized in the context of a stepchild adoption. There can also be complications with registration in the birth register, passport issuance, and entry of the child into Germany.
How is parenthood regulated in the case of surrogacy under German law?
Under German law, the mother of a child is always the woman who gave birth to the child, regardless of genetic descent (§ 1591 BGB). The biological father can, under certain circumstances, acknowledge paternity (§ 1592 BGB), but legal motherhood remains with the birth mother. The intended mother can only attain legal status through adoption of the child, usually as part of a stepchild adoption. An automatic transfer of parental rights to the intended parents, as provided in some countries, does not occur under German law.
Is adoption of a child born via surrogacy possible in Germany?
Adoption of a child born abroad through surrogacy is legally possible, but the strict requirements of adoption law must be observed. The welfare of the child must regularly be paramount and circumvention of the domestic surrogacy ban must be ruled out. Courts conduct a rigorous review, particularly to ensure that so-called “child welfare endangerment” can be excluded and that the legal status of the surrogate mother abroad is sufficiently clarified. Furthermore, adoption requires that the biological father (usually the intended father) is already the legal father of the child; the intended mother must adopt the child as a stepchild.
Can children born through surrogacy challenge their legal status in Germany?
Children born through surrogacy and living in Germany can later, with the help of legal representatives, challenge their parentage, for example through a court action to dispute motherhood or fatherhood (§ 1600 ff. BGB). However, the prospects of success for such actions are generally low as long as the existing legal determination of motherhood under German law (birth by surrogate mother) applies. Courts place a premium on the welfare and legal security of the child, so changes are generally only possible in exceptional cases, such as in the event of significant threats to child welfare or obvious irregularities.
What happens if German citizens commission surrogate mothers living abroad, but reside in Germany?
Even if a surrogacy arrangement is conducted entirely abroad, legal difficulties may arise for German intended parents. This concerns, in particular, family reunification, passport issuance, and legal recognition of parenthood. Under certain circumstances, German criminal law may apply if essential elements of the offense (for example, conclusion of contract, organizing surrogacy, arranging) occurred in Germany (§ 7 StGB). Therefore, the risk of criminal prosecution continues even after returning to Germany.
Which international conventions apply when the child and intended parents are from different countries?
In cases of international surrogacy, various national and international regulations may be relevant, such as the Hague Conventions on Child Protection and Cooperation in Respect of Intercountry Adoption. However, Germany has not acceded to any international treaty specifically on surrogacy. The recognition of birth certificates and court decisions from other countries is subject to the relevant bilateral agreements and the principles of German international private law. Without express intergovernmental arrangements, recognition of foreign surrogacy orders in Germany is generally decided on a case-by-case basis and is often accompanied by considerable legal uncertainty.
