Why German Parents Face Legal Challenges After U.S. Surrogacy
Surrogacy law in Germany is characterized by its stringent prohibition of the practice. The German Embryo Protection Act (Embryonenschutzgesetz) of 1990 makes it illegal to perform surrogacy within the country. This legislation explicitly forbids the implantation of an embryo into a woman who is not the biological mother, effectively banning both traditional and gestational surrogacy.
As a result, individuals or couples in Germany seeking to expand their families through surrogacy often look abroad to countries where the practice is legal and regulated. Despite the clear legal stance against surrogacy within its borders, the German legal system faces challenges in addressing the complex issues related to the parentage and citizenship of children born through surrogacy outside of Germany, highlighting a significant intersection of reproductive technology, law, and ethics in a global context.
The German Embassy advises that in Germany, medical activities related to surrogacy are punishable under the Embryo Protection Act. Surrogacy arrangements are also criminalized under the Adoption Placement Act. However, the German Embassy also points out, that the so-called “intended parents” themselves do not commit a crime. The German Embassy further advises that in some countries, surrogacy is permitted or permitted with restrictions, while in others it is prohibited.
What does this mean for the German Intended Parents pursuing surrogacy outside of Germany?
It is clear however,
- that surrogacy is prohibited under German law and
- that pursuant to German law, the genetic connection of a child born through surrogacy does not in itself create a legal parent-child relationship with you as the intended parents.
Pursuant to German law, the legal mother of a child is the woman who gives birth to the child, hence, the surrogate and not the intended mother. This means that a German intended mother is not related to the child and therefore does not transfer German citizenship to the child.
Further, pursuant to German law, a German intended father cannot establish legal paternity by virtue of a surrogacy contract. However, under certain conditions, paternity can be established under German law by a providing a voluntarily acknowledgment of paternity or by a court ruling confirming paternity.
On December 10, 2014, the Federal Court of Justice ruled in a foreign surrogacy case that foreign court decisions assigning legal parenthood to intended parents can be recognized in Germany under specific circumstances such as
1) at least one intended parent must be genetically related to the child and
2) the surrogate cannot be genetically related to the child.
Only when there is a legally valid parent-child relationship with a German parent does the child unquestionably acquire German citizenship, and thus a right to German citizenship and therefore the right to a German passport.
Due to the complexity of the German law and the law in the country where surrogacy is pursued, it is crucial to obtain the advice of a legal counsel who is licensed in both jurisdictions, Germany and the foreign country. Plan ahead and seek legal advice in both countries, the U.S. and Germany, to avoid delays, uncertainty and to ensure the child can obtain German citizenship and the intended parents are recognized as legal parents in Germany and the foreign country.
With proper preparation, it is possible to secure recognition, prevent issues with passports and custody, and ensure clarity regarding inheritance rights.
Our team at the German American Law Center PLC provides comprehensive legal guidance and representation in both jurisdictions, Germany and the U.S. through our German licensed attorneys at the Rechtsanwaltskanzlei PECHER and U.S. licensed attorneys specializing in German law and U.S. surrogacy law giving families peace of mind throughout the process.