Surrogacy in the U.S. and Its Impact on German Parents

For many couples in Germany, surrogacy at home is not an option, it is simply prohibited. In contrast, surrogacy is permitted and clearly regulated in numerous U.S. states. States such as California, Michigan, Nevada, or Illinois are considered “surrogacy-friendly.”

In these states, intended parents can be legally recognized as parents by court order even before the child is born (“pre-birth order”). This means: the child receives a U.S. birth certificate, parentage is secured, and the child automatically acquires U.S. citizenship. For many couples, this is a decisive advantage.

German Legal Situation: Prohibition and Conflict with Reality

The situation in Germany is entirely different:

• Surrogacy is prohibited (§ 1 para. 1 no. 7 Embryo Protection Act).
• The mediation of surrogates is forbidden (§ 13b Adoption Placement Act).
• Under German law, the mother is always the woman who gives birth to the child (§ 1591 BGB).

This creates a conflict: while the U.S. legally recognizes intended parents, German law initially recognizes the surrogate as the legal mother.

Recognition of Parenthood in Germany

So how are U.S. decisions treated in Germany?

The Federal Court of Justice (BGH) has ruled that a U.S. court decision on parentage can be recognized in Germany, provided it does not violate fundamental principles of German law.

• The genetic father is usually recognized without difficulty.
• For the second parent (spouse, registered partner, or genetic mother), a stepchild adoption is often required in order to secure legal parentage in Germany as well.

The Child’s Citizenship

By being born in the United States, the child automatically acquires U.S. citizenship. At the same time, the child generally also obtains German citizenship by descent. As a result, children born through U.S. surrogacy often hold dual citizenship from birth.

What Does This Mean for Intended Parents?

• Security in the U.S.: The child has a birth certificate and clear legal parentage.
• Uncertainty in Germany: Until recognition, there may be complications regarding passports, custody, or inheritance rights.
• Solution: With early legal preparation, the recognition process can be managed and accelerated.

Conclusion

The U.S. offers German couples realistic opportunities to become parents through surrogacy. At the same time, Germany’s prohibition creates significant legal tensions once the family returns. The case law of the Federal Court of Justice is developing pragmatically, yet without formal recognition or adoption, a legal gap remains.

Parents considering this path should seek legal advice in both countries to secure clarity and protection for their child from the very beginning. The German American Law Center is available to assist, regardless of whether your surrogate resides in Michigan or another U.S. state.