Are you considering surrogacy because your own pregnancy is impossible, very risky or not wanted? Carrying out a surrogacy abroad raises numerous legal questions. There are a number of hurdles to overcome, from drawing up the contracts to returning to Germany and, if necessary, adoption. Dr Oldenburger advises and represents you in all matters relating to fertility law, in particular surrogacy.
From a legal perspective, a surrogate mother is a woman who helps couples or individuals to fulfil their desire to have children. In return, the surrogate mother receives either a Allowance for expenseswhen they provide their services from altruistic reasons, or a fee in the case of a commercial form of surrogacy. In all cases, the surrogate mother may not carry a child that is genetically her own. This means that other people's eggs must be used. These can come from the so-called intended mother or be donated. These eggs are artificially fertilised extracorporeally in the laboratory and then initially deep-frozen (cryopreserved). Sperm from the intended father or donated sperm are used for fertilisation, either in vitro fertilisation (IVF) or intracystoplasmic sperm injection (ICSI).
The German legislator has decided to ban surrogacy. However, it has not prohibited the use of treatments offered abroad by German intended parents. What is interesting is how German law deals with the consequences of foreign reproductive medical procedures, i.e. the birth of a child in the case of surrogacy. According to a landmark ruling by the Federal Court of Justice in 2014, it is clear that circumventing the ban on surrogacy in Germany does not in itself violate the ordre public (i.e. public order). The Intended parents are the initiators of medically assisted conception, the child owes its existence to them - it would not have been conceived and born without the surrogacy agreement.
In contrast to adoptive parents, the intended parents in the case of surrogacy undoubtedly play a central role in establishing the child's identity later on as persons (co-)responsible for its creation. This opens the door wide to the recognition of a foreign court decision on parentage, i.e. the determination that the intended parents are also the legal parents of the child. If, in this respect, essential procedural guarantees were observed and the Dignity of the surrogate mother is not violated, the foreign decision is incorporated into German law without any special review of its content. It then binds all authorities, especially registry offices, which must accept and implement the parental status. In the case of surrogacy, this means that the intended mother becomes the legal mother in this way despite the (different) legal situation regarding maternity in Germany.
Also for same-sex couples and Individuals surrogacy is possible in many places abroad, e.g. in Mexico, Florida or California. Parenthood established abroad can then also be recognised in Germany on the basis of a foreign court decision, taking particular account of the best interests of the child.
The fact that the foreign decision assigns parental status to same-sex civil partners instead of a married couple cannot in itself result in a violation of public policy, says the Federal Court of Justice: According to the case law of the Federal Constitutional Court on successive adoption, it should rather be assumed that the circumstances of a registered civil partnership can promote the upbringing of children just as much as those of a marriage. Accordingly, there is no sufficient basis for differentiating between same-sex and opposite-sex intended parents.
The fact that opposite-sex intended parents can be the child's full genetic parents may establish a closer connection to the child, but does not preclude a Socially equal parenthood of civil partners is not excluded if the parenthood is permanent and legally established. In this respect, the legislator has already taken into account the fact that couples who consent to the artificial transfer of a stranger's sperm by mutual agreement must be expected to contribute to the jointly assumed responsibility for the child conceived in this way, even after birth and under changed living conditions.
This view of the Federal Court of Justice is convincing and rightly emphasises that parenthood can no longer be established exclusively through genetic-biological contributions, but is based largely on responsibility and must serve the best interests of the child. Same-sex couples therefore have the same options as opposite-sex couples.
Maternity (so-called 1st parenthood) exists in Germany exclusively in accordance with § 1591 BGB (the law was amended in 1998 by the Children's Rights Reform Act adapted). There it says: The mother of a child is the woman who gave birth to it. Motherhood is thus independent of a marital or non-marital birth, of the possibilities available through reproductive medicine (e.g. foreign egg and embryo donation, as a result of which genetic and biological motherhood are not identical) and of the circumstances of conception (which the law describes as Accomodation is labelled). In principle, it is not contestable. The law thus decides against a genetic mother as the child's mother and in favour of the woman who brings a child into the world.
Surrogacy is prohibited by law in Germany. In particular, the Embryo Protection Act prohibits doctors from participating in surrogacy. They are also prohibited from transferring a fertilised egg to another woman or otherwise inducing a pregnancy with the aim of transferring the child to a third party. However, embryo donation is permitted under certain conditions.
In some foreign countries, however, surrogacy is legal. In the USA, Mexico, Georgia, Ukraine and Greece in particular, an infrastructure of clinics, agencies and surrogate mothers has developed due to the legal framework there, which is also frequently used by German couples and individuals who wish to have children.
Even before the reform of child custody law in 1998, which led to the introduction of § 1591 BGB, which is still in force today, the Embryo Protection Act (ESchG) in conjunction with the Transplantation Act (TPG) was introduced. The Embryo Protection Act is a criminal law and prohibits doctors from, among other things, removing an egg from a woman in order to fertilise it and implant it in another woman. The Embryo Protection Act also prohibits the misuse of reproductive techniques. Ultimately, the Embryo Protection Act also prohibits doctors from artificially fertilising an egg in order to transfer it to a woman who is willing to carry the fertilised egg to term for another woman (so-called surrogate or replacement fertilisation). Surrogacy).
This is (predominantly altruistic) permitted in many countries, including European countries. In Germany, as a result of the ESchG, not only is any medical treatment in this regard prohibited, but also the procurement of a surrogate mother. However, the surrogate mother herself and the intended parents are not liable to prosecution if they proceed without medical assistance. This is regulated by the law prohibiting the placement of surrogate mothers.
Other countries and legal systems are more open to the topic of surrogate mothers and allow surrogacy. Especially in the
Surrogate mothers are also allowed to work legally in other European countries. However, the legal framework is different in each country. In many of these countries, the Use of a surrogate mother also for German couples and individuals possible. This applies equally to couples of different nationalities who have their habitual residence and domicile in Germany.
When planning surrogacy abroad, couples and people with an unfulfilled desire to have children must of course observe the respective laws and check whether, and if so, under what conditions they can and may have artificial insemination carried out there and use the services of a surrogate mother. The choice of country is therefore not easy and should be made wisely according to individual requirements and demands. We will be happy to advise you on this.
Another aspect can have a significant influence on the decision to select a country, namely the way in which it is selected, how parenthood under foreign law can be implemented in German law. The paths vary from country to country. It is therefore essential to obtain detailed advice and assistance from a lawyer at an early stage.
a. Surrogacy in Greece - the legal situation
More and more German couples are fulfilling their desire to have children through surrogacy abroad. Greece has established itself as a popular European destination. Especially after the outbreak of war in Ukraine, Greece is a close and good alternative for German intended parents. However, it is not an option for same-sex and unmarried couples.
Surrogacy is permitted in Greece. Articles 1455-1460 and 1464 of the Greek Civil Code stipulate the requirements, conditions and procedures for surrogacy.
In surrogacy, the embryo is created in the laboratory by means of in vitro fertilisation - although the surrogate mother's own eggs may not be used. However, egg donation is possible if the German intended mother does not have any fertile eggs or if there are major risks associated with their use. In principle, the donor must remain anonymous.
Eligible to participate in the non-commercial surrogacy In Greece, married and unmarried couples are recognised as heterosexual couples and Single women. The possibility of surrogacy in Greece does not exist for same-sex couples, regardless of marriage, nor for single men.
This is required for the use of a surrogate mother. legitimising court decision necessary. Only if a woman cannot become pregnant for medical reasons, which must be proven to the satisfaction of the court, can a court authorisation be granted. In addition to the requirement that the intended mother must prove that she is unable to bear children, the prospective surrogate mother must be suitable for the intended pregnancy and birth. This requires Medical and psychological tests and a written agreement with the intended parents is required. Under no circumstances may the surrogate mother provide her own eggs for fertilisation.
In order to submit an application, the intended parents must be resident in Greece. Until 2014, it was still necessary for the intended parents to and the surrogate mother had her permanent residence in Greece, the Greek legislator has now relativised these requirements by amending the law: It is now sufficient for the surrogate mother to have a residence or temporary stay in Greece. This makes it easier for German intended parents or women who wish to have children to find a suitable surrogate mother and to take part in the programme there. However, as advertising for surrogacy and its organisation are still limited despite some simplifications, the search is often only successful via clinics that specialise in reproductive medicine.
Surrogacy in Greece is altruistic. The surrogate mother may not be paid for her support, but receives a Allowance for expenseswhich was adjusted by the legislator at the end of 2022. It is permissible for the surrogate mother's expenses incurred before and during the pregnancy to be reimbursed by the intended parents. There is currently a financial limit of around €15,000. However, this may be supplemented by the payment of maintenance. The surrogacy contract should therefore be carefully examined and, if necessary, adapted, in particular to avoid disadvantages under status and criminal law.
Due to the continued purely selfless support of German intended parents by surrogate mothers who are allowed to work in Greece, commercialisation should be avoided. Intended parents who contravene this can penalised become. A violation of Greek law, e.g. paying the surrogate mother more than the permitted expense allowance, would probably also have consequences for a possible parenthood under German law. Therefore, caution is advised when giving gifts to the surrogate mother. This is because if the intended parents deceive about the conditions of their eligibility or pay the surrogate mother contrary to the legal prohibition, they can be prosecuted with a custodial sentence or a fine of at least €1500.
The German intended parents acquire parental status in Greece after the surrogacy has been duly authorised by the court and carried out. This is documented on the Greek birth certificate, in which the intended parents are listed as legal parents. The surrogate mother, on the other hand, has no rights to the child, which is also one of the important prerequisites for the Greek legal system to allow the services of a surrogate mother to be used at all.
However, problems also arise here, as the desired maternity under Greek law is not recognised in Germany and therefore a Stepchild adoption to obtain parental status for the mother. These aspects must be observed and taken into account in the implementation, especially in the contractual provisions on the surrogate mother's duty to cooperate in order to obtain parental status for the intended parents in Germany.
Dr Oldenburger advises and represents you comprehensively in this regard, including a regular subsequent stepchild adoption in Germany.
German intended fathers are free to recognise their paternity before birth. To be effective, the Consent of the surrogate mother is required. This can also be provided prenatally. Once paternity has been effectively recognised, the child acquires German citizenship and a provisional Passport document issued by the German diplomatic mission in Athens.
In order to be able to act in Germany and, in particular, to exercise custody rights, the intended father needs a special Declaration of custody of the surrogate mother. This is because she is considered the mother under German law and has sole custody, even though she does not intend to exercise this right and is not the mother of the child she has given birth to for the intended parents under Greek law. This declaration of custody is a central prerequisite for the ability to act in relation to all matters concerning the child in Germany, as this is lacking if she is the father alone.
b. Surrogacy Ukraine
More and more German couples are fulfilling their desire to have children through surrogacy abroad. Ukraine had established itself as a very popular destination country until the start of the war in early 2022. This was due to the surrogacy infrastructure there - with numerous agencies, clinics and surrogate mothers - as well as the comparatively favourable costs and, last but not least, the legal situation there, which is positive for foreign intended parents.
The War in Ukraine has significantly restricted surrogacy since the beginning of 2022. Staying in Ukraine can be dangerous not only for surrogate mothers, but also for the intended parents. Regardless of the risk to life and limb, the necessary documents to leave Ukraine with the newborn child and enter Germany are often lacking. This requires improvisation skills, but also the use of resources that are still accessible.
Dr Oldenburger, an experienced surrogacy lawyer, supports them in this and helps them to prepare and implement border crossings legally.
Through a Agreement between the German and Ukrainian chambers of notaries This makes it easier to implement the necessary declarations from surrogate mothers into German law. Honorary consulates can also be used to issue temporary travel documents without having to travel to the embassy in Kiev, which may be closed.
According to media reports, there are agencies and clinics in Ukraine that are the focus of investigations by the public prosecutor's office on suspicion of child trafficking. We therefore strongly recommend that you inform yourself about the current legal situation before concluding a contract and do not sign any contract without consulting a lawyer.
Below we provide you with an overview of the legal framework for surrogacy in Ukraine and practical information for intended parents, taking into account the German ban on surrogacy. Dr Oldenburger has been successfully assisting parents and families throughout Germany and internationally in the planning and realisation of surrogacy since 2014.
Surrogacy is illegal in Ukraine by law allowed and regulated. The intended parents must fulfil the following requirements: They must be Married and opposite-sex be. A (successful) pregnancy of the intended mother must not be medically possible, and the intended father must make his sperm available for artificial insemination.
The requirements for the Ukrainian Surrogate mother are as follows:
In surrogacy, the embryo is created in the laboratory using In vitro fertilisationsometimes also with the ICSI method, in which the sperm is injected directly into the egg - but always the Sperm of the intended father can be used.
The use of own eggs is not required by law in Ukraine. This means that the intended parents can own eggs but can also procure eggs from other donors via a donor bank. As is usual in other countries, the donor remains anonymous. It is important that these legal requirements are met, otherwise the legalisation of parenthood in Germany may fail.
Ukrainian law also allows for a Preimplantation genetic diagnosis (PID) and the Selection of gender of the embryo carried by the surrogate mother. The agency or clinic contract usually contains more details on this. However, if you require special examinations that go beyond the standardised measures, these should be included in the contract negotiations and explicitly made the subject of the agency's or clinic's obligations. This depends on special aspects and risks that should be included in the consultations in order to be able to base your surrogacy on them.
Even before the birth, the intended father can Recognising parenthood. However, this requires the Consent of the surrogate mother. Paternity is usually recognised before a German notary. However, it is also possible to submit a declaration of recognition after the birth in Ukraine. This requires a Honorary Consulate or the German Embassy be visited in Kiev. Due to the war, such an approach is not recommended. As the Consent of the surrogate mother If the declaration must be notarised, it may make sense to make this declaration before a Ukrainian notary on the basis of the cooperation agreement.
However, a parent cannot make any decisions for the child with a formal acknowledgement of paternity alone. For this he needs the Custody. The surrogate mother is entitled to this, even though she is not a mother under Ukrainian law. In order to be able to exercise joint custody rights with her, the surrogate mother must have a so-called Declaration of custody hand it in. This can also be done at a Ukrainian notary's office. We support you at this important interface, because without an effective declaration of custody, intended parents cannot take care of their child, e.g. carry out medical examinations, apply for parental leave, make registrations, etc.
After the birth, the German intended parents can register as parents at the local registry office in Ukraine and obtain a corresponding Birth certificate be issued. Under Ukrainian law, the surrogate mother has no right to assume maternity for the child. Depending on the contractual agreements, the contracted agency regularly provides support in this regard.
German law always recognises the woman who gave birth to the child as the mother. It is therefore generally not possible in Germany to directly adopt the legal intended motherhood - and a corresponding official decision from Ukraine is recognised here just as little as a Ukrainian birth certificate.
The Federal Court of Justice expressly ruled in 2019 that a woman may not register as the mother of her child carried by a Ukrainian surrogate mother at the registry office on the basis of a Ukrainian birth certificate can be registered (BGH, decision of 20 March 2019, ref. XII ZB 530/17).
While recognising the paternity of the intended father is usually unproblematic in Germany, the intended mother, on the other hand, will always have to resort to a paternity suit due to the legal situation described above. Stepchild adoption referred, if the route via recognition of a Ukrainian parentage decision is being walked.
Two aspects were decisive for the BGH's decision: Firstly, the habitual residence of the child, which determines the applicable law. This residence, like that of the intended parents, was in Germany, so German law was to be applied with regard to parentage. After all, according to the judges, it was clear to all parties involved that the child would travel to Germany with the intended parents soon after birth and live there. And secondly, the BGH clarified that a Birth certificate not a decision is to be recognised in Germany.
Similar to judicial parentage decisions, which are provided for in many US states (including California, Nevada, Ohio, etc.), it has also been possible for some time in Ukraine to obtain a court decision on parentage to obtain. To this end, the courts regularly require a Legal opinion from Germany, which explains the requirements for a special need for legal protection following a court decision.
Dr Oldenburger prepares such legal opinions for you in individual cases in order to obtain the necessary legal protection.
In this way, it is possible to have parental status established in Ukraine by means of a court decision. The parental status derived from this can then be recognised in Germany, unlike a birth certificate alone. We also carry out the corresponding procedures for you. This avoids stepchild adoption, which is currently associated with considerable problems and an unclear time horizon.
The child regularly obtains German citizenship through the (German) citizenship of the intended father. If the other requirements are met, this is linked to the option of having a temporary German passport for the child.
However, if the intended father has a different nationality, paternity must regularly be established in accordance with this law. This can lead to the involvement of other foreign representations, which complicates the process. This is because it would then also be difficult to obtain a Ukrainian court decision, which in turn means problems in legalising the intended parenthood.
Dr Oldenburger also advises and represents you in this respect in order to overcome legal hurdles to parenthood.
c. Surrogacy California
California offers an excellent infrastructure and many years of experience in surrogacy. There are a large number of agencies and clinics. The medical standard is considered to be particularly high by international standards. Irrespective of the relatively high costs for a Californian surrogacy, waiting times for surrogate mothers are regularly short, and there is also the possibility of a prenatal court decision (pre-birth order)This establishes intended parenthood and is also recognised in Germany as long as there are no grounds for refusal and one of the parents is genetically related to the child. A stepchild adoption is no longer necessary.
Below we give you an overview of the legal framework for surrogacy in California and practical information for intended parents, taking into account the German ban on surrogacy and egg donation.
Surrogacy is permitted in California. Unlike in Ukraine, for example, same-sex couples and individuals can also fulfil their desire to have a child by means of a surrogate mother. The legal situation in California is also special because the law there allows both sperm and egg donation. This means that Germans can theoretically - without making their own genetic contribution - have a foreign egg fertilised with foreign sperm and then have it carried by a surrogate mother. This goes far beyond heterologous insemination, which is also permitted in Germany and elsewhere, as in California donated eggs can be used. However, this approach becomes problematic when recognising the Californian court's decision on parentage, as the Federal Court of Justice has so far required at least a Genetic ancestry from an intended parent. In such constellations, you absolutely need legal support from a lawyer specialising in surrogacy.
In surrogacy, the embryo is created in the laboratory by means of in vitro fertilisation - whereby the surrogate mother's eggs may not be used under any circumstances. However, if the German intended mother no longer has any fertile eggs, egg donation is possible. In principle, the donor must remain anonymous under Californian law.
Unlike in Ukraine, for example, foreign sperm can also be used for fertilisation in California. In Ukraine, on the other hand, the child must always be genetically descended from the intended father. In California, therefore, the focus is not so much on biology and genetics when establishing parenthood, but rather on intentional (conscious) responsibility and the fact that new human life is created in return.
In California, only a woman who is at least 21 years old, has already given birth to a child and is either an American citizen or has a permanent residence permit can become a surrogate mother. She must be suitable as a surrogate mother, which must be proven and verified by medical and psychological tests.
However, intended parents and individuals who wish to have children must also undergo tests, especially for communicable diseases such as HIV and hepatitis.
The choice for the state of California is made against the background of obtaining a pre-birth order there. Even before the birth, the parenthood of the German intended parents or an individual is established by a family court decision. The court decision always requires a Surrogacy contractbecause the court must examine this contract and make its own decision on the merits as to whether the requested intended parenthood is permissible and justified.
In addition, an agency and clinic contract will regularly have to be concluded, and possibly also a contract for egg and/or sperm donation. In addition to special conditions under Californian law, important aspects of German law must be included in all these contracts. Dr Oldenburger will review these contracts for you from a German legal perspective and will also involve Californian lawyers in individual cases. This lays important foundations for the surrogacy process, even in the event of complications, and the legalisation of intended parenthood in Germany.
After the birth, the German intended parents or an intended parent will receive a American birth certificate (us birth certificate). She or he is listed as the parent(s). Under Californian law, the surrogate mother has no right to assume maternity for the child. She is therefore not entered on the birth certificate at all.
Together with the court decision on parentage (which is Apostille and officially translated into German Translated and a genetic certificate of parentage, the (German) intended parents receive a provisional Passport for your child and can thus leave the USA together and enter Germany.
If the passport is not issued, e.g. because there is no genetic proof of parentage, an attempt must be made to leave and enter the country with other documents, e.g. an American passport yet to be applied for and the child's birth certificate. The stay in California can therefore be prolonged, as the intended parents must wait for the American child passport in this case.
In Germany, the woman who gave birth to the child is always considered the mother (§ 1591 BGB). In contrast, the decisive voluntary element of a Intended motherhood has not yet been developed in Germany. In connection with the planned Reform of the law of descent The Federal Constitutional Court has discussed not only accepting genetic-biological parentage, but also recognising the mother's wife as a parent. The Federal Constitutional Court has taken the view that there can be no purely genetic parenthood without an assumption of responsibility. However, despite the inclusion of the reform plan in the coalition agreement, there have not yet been any concrete changes to German law. Surrogacy, embryo and egg donation are also still prohibited. The Draft discussion section of the BMJV, which wanted to extend the reform project at least to the parenthood of the mother's wife, has disappeared into the drawer again. At present, it must be assumed that a concrete new proposal for the reform of parentage law cannot be expected before 2025.
The direct assumption of maternity, e.g. on the basis of a surrogacy contract and a foreign birth certificate, is generally not possible in Germany - and a merely official decision on parenthood abroad is generally not recognised in Germany.
However, in 2014, the Federal Court of Justice (BGH) made an important decision on the recognisability of foreign intended parenthood following surrogacy: If parenthood abroad is recognised by a court decision (e.g. pre birth order), German law cannot simply reject it and refuse to recognise it simply because German law prohibits surrogacy. Rather, the foreign decision must be recognised in Germany, even if German law prohibits surrogacy. The ordre public international and the Child welfare argue in favour of this (BGH FamRZ 2015, 240).
d. Surrogacy in California - leaving the country with the child
The Federal Republic of Germany maintains an embassy in the capital of the United States of America, Washington. There are also consulates general in various cities, including in Los Angeles and San Francisco. In addition to the official district of Southern California, the Consulate General in Los Angeles is responsible for all consular matters for the states of Arizona, Colorado, Nevada and Utah. The Consulate General in San Francisco is responsible for Northern California, as well as for the states of Alaska, Hawaii, Idaho, Montana, Oregon, Washington and Wyoming.
If a child of German intended parents is brought into the world by a surrogate mother in California, preparations must be made for the child to leave and enter the Federal Republic of Germany. If a Californian court has established the parental status of the intended parents before the birth and the birth of the child is confirmed in this respect, the German intended parents are also legally deemed to be the parents of the child born to the surrogate mother. A Recognition of this decision is generally conceivable in Germany in accordance with Section 108 (1) FamFG. Exceptions exist if there are fundamental violations of relevant German legal provisions. These can be violations of the surrogate mother's dignity, the exploitation of coercive situations, the exertion of pressure and much more. The Federal Court of Justice currently requires genetic proof of parentage from at least one intended parent in order to be recognised. This is regularly prepared by the maternity clinic using mucosal swabs after the birth.
The court decision on parentage must be provided with an apostille and officially translated. A translation is also regularly carried out for the genetic parentage certificate. Due to a regularly recognised parenthood after a court decision, it is then possible to apply for an apostille at the German Consulate General. Passport for the child. A child passport has no longer been available since 01/01/2024. A biometric passport, which is now only possible, is valid for six years.
To obtain such a passport, an appointment at the Consulate General is required. The custodial parents must personally appear. If all requirements are met, a processing time of 6-8 weeks can be expected for the issuance of the passport. An online appointment system is available for making appointments.
Whether the Consulate General in Los Angeles or San Francisco is responsible depends on the child's place of birth. In this regard, the respective Districts authoritativeLos Angeles for Southern California and San Francisco for Northern California. In detail, the following districts are relevant for Los Angeles: Imperial, Kern, Los Angeles, Orange, Riverside, San Bernadino, San Diego, San Louis Obispo, Santa Barbara and Ventura (in addition to the states of Arizona, Colorado, Nevada and Utah). San Francisco, in turn, is responsible for all other districts/counties as well as the other states listed above.
In addition to the child's American birth certificate, a certificate confirmed by the hospital is required. Birth certificate necessary. The birth certificate must be in the Long version and contain the names of the parents. Parents must present their passports and marriage certificate, if available.
If there is only one parent or the parents are not married to each other (parents in the sense of the prenatal court decision on parentage), a Recognition of paternity with Declaration of consent of the person/woman who gave birth to the child. This also means that in these constellations, the parenthood of a German intended mother cannot be installed without a court decision on parentage.
The application can be made on the basis of a form provided on the website of the Consulate General. Application form be prepared. The necessary for the child biometric passport photo can be issued directly at a machine in the Consulate General.
The issuing of a passport may require a Name declaration. The German intended parents are entitled to have a surname and to give the child a birth name. If the German intended parents have not yet chosen a surname, they must declare one for the first time to determine the birth name. If you have a family name, this will automatically become the Birth name of the child.
On 12 April 2020, the German Bundestag adopted the federal government's draft law on the reform of the naming law, which is due to come into force on 1 May. German intended parents will then be able to choose a real surname as their family name in future. Double names consisting of the name or maiden name of one of the parents. Such a name declaration is necessary before applying for a passport. There is a form available on the website for this purpose.
Both the name declaration and the application for a passport can, if desired, be submitted to the relevant registry office or citizens' office after returning to Germany. In these cases, preparation for departure at the airport in the USA and entry into the Federal Republic of Germany is also possible. The long form of the American birth certificate in conjunction with the apostilled and officially translated parentage decision is usually sufficient documentation of parenthood. Even if a German birth certificate has not yet been issued or a German passport is available for the child, the parental status in conjunction with the certificate follows the generally recognised content of the American parentage decision. As a precautionary measure, a Voluntary declaration of the surrogate mother to leave and enter the country and take up residence with the intended parents in Germany.
If there is no parenthood based on a prenatal apostilled, translated and legally valid decision, it has not yet been clarified for the German legal system which effects under the law of descent a postnatal court decision. In principle, it can be assumed that she will be the parent of the German intended parents for the future, at least from the time of the decision. Until such a decision is made, however, the surrogate mother could become a parent, as she has parental status from a German legal perspective. The American birth certificate is usually issued after the postnatal parentage decision has been made. Depending on the respective federal state, a further declaration by the surrogate mother would be required to obtain parenthood for the German couple. Without further declarations of status, this could make it impossible to leave or enter the country.
In any case, the German intended parents need an American long version of the birth certificate in which they are documented as the parents of the child.
In addition, they require a court decision and, if this is not available or cannot be provided, consent to an acknowledgement of paternity. In this respect, at least the parental authority of the father can be established. In these cases, however, it remains the case that the first parental position, mother, is filled by the surrogate mother. As a result, the legal father (and his spouse) requires a Declaration of custodybecause, from a German legal perspective, the mere establishment of the parental authority does not automatically mean that the surrogate mother also has custody rights. This means that in these cases the surrogate mother will have to make at least two declarations to the relevant consulate general, which will be notarised there: The Consent to a prior or simultaneous declaration to be the father of the child (acknowledgement of paternity) and, secondly, a Declaration of custody. As already mentioned, it is advisable to make a supplementary declaration that you agree to leave the country and reside in Germany. Power of attorney The father should be given sole decision-making authority. Voluntary declaration and power of attorney may also be addressed to the Consulate General and notarised by it in a single document (i.e. together with the consent and declaration of custody) in public form.
Due to the need to apply for a passport in person at the relevant consulate general, this route is unlikely to be particularly attractive for many intended parents in the case of prenatal court decisions on parentage. As it is usually possible to leave and enter the country without a German passport and name declaration, further clarification can take place after returning to Germany. Otherwise Length of stay from up to eight weeks to be taken into account.
After entering the Federal Republic of Germany, a Name declaration and the Subsequent certification of the foreign birth. If a court decision has been made, this can be examined incidentally to the application for subsequent certification and taken into account by the registry office to the effect that the German intended parents are also entered in the main entry on the German birth certificate. If the registry office is not sure about this, it can apply to the local court for a submission in case of doubt. The intended parents are also free to apply to the family court themselves for a Application for recognition of the foreign decision to put. With a Recognition decision authorities are then bound by the attribution under parentage law. The court decision therefore regularly results in the issue of a German birth certificate. Whether this leads to an entry in the main entry in the case of postnatal decisions or in a subsequent certificate is, as explained, still unclear. On the one hand, it is argued that the court decision regularly has an effect back to the time of birth and therefore no subsequent certification is required. In both cases, however, the German intended parents receive a Birth certificate with them as parents.
The rights and obligations of all parties involved in a surrogacy arrangement are governed by various contracts. At the beginning, the focus is regularly on a Agency contracti.e. a contract for services with a foreign surrogacy agency. These contracts are generally governed by the law of the country in which the agency is based. From a German legal perspective, there are many special features to consider, in particular what you pay a fee for and when, what extra costs may be incurred, what services are included by the agency, and so on. From our many years of experience, the following are important
In addition, often Contracts with a clinic which provides the medical services. Depending on the individual case and the applicable national law, further contracts for egg and sperm donation may be concluded in this context.
This is regularly followed by the important Contract with the surrogate mother. This includes, among other things, personal and medical conditions for the surrogate mother, procedures including medication, the transfer of one or more fertilised eggs and behavioural requirements for the pregnancy.
In addition, risks are allocated, e.g. who is liable for the surrogate mother's loss of earnings or up to what amount for health impairments suffered by the surrogate mother as a result of her services. All of these contracts are complex and usually very extensive.
a. Agency agreement
In most cases of planned surrogacy abroad, a contract is concluded with an agency that coordinates the processes relating to the planned surrogacy. Fees are charged for this. The agency contracts differ from country to country. What they have in common is that they are assessed according to the law of the state in which the agency is based. This can therefore be a federal state in the United States of America, a country in the Indian Ocean or elsewhere.
As an intended parent, you should ensure that the applicable law provides a framework that determines or helps to interpret the content of the agency agreement in the event of a dispute. This is comparable to general terms and conditions under German law, for example, which are regulated by law and are included in a large number of contracts by the so-called Small print be concretised. There may be clauses here that are invalid. In this case, the statutory provisions apply. It is therefore important when embarking on the adventure of surrogacy to make sure you are aware of the pitfalls in the event of a dispute regarding the agency agreement.
You should take particular care to ensure that disputes are settled after the intended National law be dealt with. We have had good experience in a large number of contract drafts and negotiations with having these contracts reviewed by a specialised law firm in the respective country, particularly with regard to claims for damages and repayment.
Most recently, disputes have arisen due to so-called force majeure, partly because of the coronavirus protective measures. The contracts regularly provide for an exclusion of liability. This means that in the event of force majeure, you will not be able to achieve the objectives of the surrogacy, but you will still be obliged to pay for the agency's services. The special features of the Covid-19 pandemic are particularly relevant here and require special attention.
However, case law in relation to surrogacy is changing. There are changes, for example through the now established possibilities of recognising court-ordered surrogacy. Ancestry decisions from Ukraine, which many agencies have not yet included in their services.
This means that you will not receive support from the agency to obtain such a parentage decision from the outset. If you wish to include this after the contract has been concluded, additional fees will regularly be charged. We therefore recommend that you carefully review the agency contract as a framework for the surrogacy to be carried out and adapt it to the legal requirements applicable to German couples.
b. Clinic contracts
Before a surrogacy contract is concluded with a surrogate mother, contracts are often concluded with a clinic after an agency contract has been signed. These contracts usually regulate the following in great detail Medical servicesfor example, the collection of eggs and sperm (or their procurement via a donor bank), their quality testing and cryopreservation, in vitro fertilisation (or ICSI), transfer (insemination) to the surrogate mother, pregnancy monitoring measures and finally the birth. The contracts provide for fees for these services, which are ordered by the intended parents, but which are often already included in the package price in the agency contract.
Here, too, it is important to precisely record the medical services and, in particular, the options for examining egg and sperm cells. As far as possible in some countries, it should be clarified whether Preimplantation genetic diagnosis and Sex determination and, if so, at what cost and with what possible risks.
Where necessary, contracts for sperm and egg donation are also concluded as part of clinic contracts. In addition, contracts are often concluded for Cryopreservation. They have to decide whether and for how long, and they also have to decide what to do with the remaining fertilised eggs/blastocysts etc. after the surrogacy has been successfully completed.
It is worth noting that with a Egg donation no donor data is regularly recorded and passed on. This means that a child born to a surrogate mother cannot receive any information about its genetic origin (in relation to the egg). The German legal system accepts this, although judicial decisions demand that the child is entitled to clarification and determination of its identity. Nevertheless, this is restricted with regard to the status of egg cell donations, unlike sperm donations.
Clinic contracts naturally also involve payment obligations. The Quantity of in vitro fertilisation and Transfers for example, can be a relevant economic aspect. Due to the risks of this type of fertilisation, which of course also depend on the quality of the cryopreserved blastocysts or similar, there is often only a limited number of fertilisation attempts. If you do not ensure in the contract that not only a one-off IVF and subsequent transfer is planned, this can quickly lead to considerable follow-up costs. It is therefore essential that the contract is reviewed and adapted in relation to all medical aspects (also) from an economic perspective.
Intended parents often have to travel to the foreign clinic for medical examinations and treatment. In addition to the fees stipulated in the contract, there are therefore additional expenses for flights and hotels. These should be factored into the overall planning. However, some agencies and clinics in Europe have now developed Partner clinicsso that travelling costs and stress can be reduced.
The medical services, including IVF (or ICSI) and transfer to the surrogate mother's uterus, do not provide any guarantees for a healthy child. Therefore, if a repeated attempt does not lead to implantation and pregnancy of the surrogate mother or if problems arise in the run-up to artificial insemination, the various contracts are usually related to each other.
This concerns the obligation to pay for medical services and services provided by the agency, but also any repayment claims in the event that problems have arisen, for example, due to improper medical treatment. In this case, claims must be reviewed and, if necessary, enforced in accordance with the applicable state law.
c. Surrogacy contract
In the case of a surrogacy contract that is then ultimately negotiated, things become exciting (again) from a German legal perspective. The contract provides for the services of the surrogate mother and a corresponding fee, unless it is altruistic. In many countries, the fees are already regulated as lump sums in the agency contracts or clinic contracts, so that the surrogacy contracts only contain the respective special rights and obligations. In addition to the surrogate mother's voluntary relinquishment of all rights to the child, these include how she must behave during the pregnancy, which examinations she must have carried out and what information she must pass on. Comprehensive Codes of behaviour that go as far as sexual abstinence. Individual ideas and agreements must be made at this point.
In addition to the special behavioural measures, rights and obligations, surrogacy contracts also include support for the surrogate mother in obtaining the legal parental status of the intended parents, in addition to any payments for services and acts of cooperation. In California or Mexico (or Ghana), this may relate to the Participation in the prenatal judicial parentage decisionin relation to Greece or Georgia with regard to cooperation in recognising paternity together with a declaration of custody, in the case of surrogacy in Ukraine also with regard to cooperation in the postnatal court decision. This is followed by further support for the surrogate mother in relation to the issuing of a birth certificate. All these aspects should be contractually regulated in order to enable the smoothest possible realisation and attainment of parenthood for the German intended parents.
Another important aspect in connection with the surrogacy contract is the Health insurance cover. The surrogate mother is paid for her services or - as in Canada or Greece - supports German intended parents selflessly and receives an expense allowance. Surrogate mothers often do not have sufficient health insurance cover of their own, or it does not include Exclusions of liability for pregnancy or surrogacy.
During the pregnancy and birth, however, medical treatment may be necessary and complications may arise. All treatment costs incurred for this must regularly be covered by the intended parents. It is possible to arrange and take out special health insurance cover. In many countries, this takes place within the framework of optional Insurance packages on the occasion of the agency or surrogacy contract. In some countries, however, this must be regulated and agreed separately. It should be noted that the insurance cover provided for in the contract often does not cover certain illnesses and treatment costs.
Newborns can be included in the insurance cover of a parent of choice at birth via statutory family insurance, but also as part of private health insurance. It is important to find out about this insurance cover at an early stage and have it confirmed. Otherwise, a special Paediatric health insurance be finalised.
Despite the ban on surrogacy in Germany, it is therefore possible for couples and individuals with their habitual residence in Germany to utilise the services of a surrogate mother abroad. Depending on the choice of country and the place of birth of the child, the intended parents or an intended parent are legally recognised as Parent position. But first only in the country of birth of the child by the surrogate mother.
In some countries, however, the surrogate mother is considered to be the mother, so that her status must first be corrected and the intended parents replaced (e.g. in Mexico). But even if the intended parents are then listed on the foreign birth certificate, they are not yet parents for German law. Depending on the country of surrogacy, there are various ways to achieve this.
a. Stepchild adoption
One way is the Adoption or Stepchild adoption. A child can be adopted as an own child if the adoption is in the best interests of the child and it is to be expected that a parent-child relationship will develop. If a child of one spouse is adopted by the other spouse, it becomes the child's own child. joint child of the spouses and their original family relationships expire. The same now applies to stable non-marital partnerships.
The Adoption application must notarial be notarised and then submitted to the family court. For this application, the intended parents must first seek counselling and obtain a Certificate must be attached. In addition, the surrogate mother, who may be the child's mother from a German legal perspective, must attach the following documents to the adoption application agree. However, she can do this at the earliest 8 weeks after the birth of the child. The same applies to the father of the child and husband of the adopting mother. He is therefore in a quasi Dual role. All consents must be notarised. This can be challenging for a surrogate mother living abroad, for example.
In many cases, the adoption of the child by the other parent will be necessary in order to reunite the intended and often already existing family in legal terms, so-called Stepchild adoption. The permissibility of a stepchild adoption is subject to considerations of Child welfare in the foreground. New since 2021 is a special counselling obligation that applies to births abroad and the place of residence of the relinquishing parent (surrogate mother). This counselling certificate must be attached to the adoption application.
In 2019, the Higher Regional Court of Frankfurt am Main authorised an adoption after surrogacy and dealt in detail with the legal issues surrounding adoption after surrogacy:
The Frankfurt judges authorised the adoption of the child carried by the surrogate mother by the intended mother. They pointed out that paid surrogacy does not constitute a unlawful mediation represent. The case concerned a surrogate motherhood in Ukraine. In Germany, the Ukrainian surrogate mother was initially considered to be the mother, as she had given birth to the child. However, the intended father had already legally recognised paternity, meaning that his wife was regarded as the child's stepmother. For this constellation, the Higher Regional Court of Frankfurt am Main authorised the adoption by the stepmother, as it was in the best interests of the child within the meaning of Section 1741 (1) sentence 1 BGB and a parent-child relationship had been established, or at least was to be expected. After all, the stepmother had already actively assumed the role of mother with all the associated tasks and would continue to do so (OLG Frankfurt am Main, decision of 29 February 2019 - 1 UF 71/18).
In a further decision from December 2023, the Higher Regional Court of Frankfurt am Main once again dealt with the Stepchild adoption after surrogacy in Ukraine (OLG Frankfurt, press release dated 14.12.2023 on the decision 2 UF 33/23 dated 12.12.2023). The judges found that the stepchild adoption of a child born abroad by a surrogate mother is possible despite the ban on surrogacy in Germany: The wife applied to adopt her husband's underage child. The couple had previously contacted a Ukrainian fertility clinic. There, a pregnancy was induced in a Ukrainian woman with the help of an egg donation. The husband recognised the paternity of the child born to the surrogate mother in Ukraine at the beginning of 2020. Due to birth complications and the border closures caused by the pandemic, the child could only be adopted by his German intended parents in the summer of 2020. The family court had still rejected the adoption application. The couple's appeal against this was successful before the Higher Regional Court of Frankfurt am Main. The necessary conditions for adoption moral justification could also exist in the case of a stepchild adoption, the 2nd Family Senate explained its decision. The decisive factor was whether it was necessary for reasons of the child's welfare that the child could also establish a legal parent-child relationship with the stepmother. As usual, the prerequisite for this is that the child is brought up in the household of both intended parents without any objections and that both are recognised as the child's parents. social parents know.
In the case of this surrogacy, however, it should also be taken into account that the surrogate mother had never wanted to take the child into her care and had given her consent to the adoption after the birth, as required under German law. For this reason, the child was ultimately dependent on the intended parents. In this case, the stepmother must also be given the stronger position as the child's legal mother so that the child can be allocated according to child welfare criteria, for example in the event of separation from the father or after his death, as is usual with two legal parents. In the case of legal parents, it depends on who has the closer relationship with the child. This could also be the - social - mother. Since without adoption, in the event of separation of the intended parents, the child would regularly have to remain with the only legal parent and would be dependent on the significantly weaker rights of contact with the stepparent living apart, the Social parenting of the mother by way of adoption into legal motherhood converted become.
It does not matter whether the stepmother is genetically related to the child through egg donation. From the child's perspective, the bond with the stepmother is determined by the relationship she has had with the child for years. Social parent organisation is decisive. Furthermore, it is ultimately irrelevant whether the legal father is also the genetic father of the child. This is because a significant difference between "only" legal paternity and paternity that is also consolidated by a biological bond is hardly inherent in German parentage law. For this reason, it was not necessary to clarify whether the paternity legally recognised abroad was based on a sperm donation by the father. The factual and ethically highly problematic circumstances of surrogate motherhood that came to light during the proceedings were legal policy significant, but for the question to be answered individually about a solution orientated towards the best interests of the child not decisive.
If neither maternity nor paternity lies with the intended parents, they can in principle adopt the child together. However, there are a few hurdles to overcome in such an international adoption procedure.
The following must be taken into account Adoption Mediation Actwhich was amended in 2021. This regulates the international adoption procedure in Sections 2a et seq. of the Adoption Act. Other laws that are relevant to international adoptions are the Hague Adoption Convention, the Adoption Convention Implementation Act and the Adoption Effectiveness Act.
b. Foreign decision
Another way is the Recognition one foreign decision about parenthood. This first requires a foreign decision. In 2019, the Federal Court of Justice ruled that in order for intended parents to be recognised as parents under German law, a foreign decision on the merits that establishes or establishes parental status is always required. Such a decision requires that it is issued by a state authority has been made, which functional with German courts can be equated with a
Even a state-owned foreign Authority file must therefore correspond to the effect of a German court decision. For this reason, a mere Registration not be recognised - a birth certificate or registration of birth has no such effect. This can be seen, for example, in the fact that the entry in the register can be corrected at any time, whereas a court decision either has a corresponding substantive legal effect or otherwise clarifies the legal issue in a binding and final manner.
It is therefore not sufficient to simply present a birth certificate or entry from the birth register.
If the validity of the surrogacy agreement and the legal parenthood of the intended parents is recognised by the competent foreign court in a manner that meets the requirements of the rule of law, the surrogacy agreement may be terminated. Procedure has been established, the decision regularly provides the guarantee for a Free decision to participate the surrogate mother and for the Voluntary nature of the publication of the child to the intended parents. The mere fact that a surrogacy programme has been carried out means that the Human dignity of the surrogate mother. However, circumventing the ban on surrogacy that applies in Germany is not in itself sufficient grounds for refusal, says the Federal Court of Justice. This is all the more true from the perspective of the child, who would not have been born without the surrogate motherhood.
However, the human dignity of the surrogate mother could be violated if the surrogacy is carried out under circumstances that call into question the voluntary co-operation of the surrogate mother, or if essential circumstances remain unclear, for example Personal details of the surrogate mother, to the Conditionsunder which she has agreed to carry the children, and to an agreed Agreement or if, in the foreign court proceedings, fundamental procedural guarantees have been disregarded. Recognition in Germany is then not possible. It is therefore important to be aware of and consider these aspects from the outset in order to avoid complications when legalising parenthood in Germany at a later date, i.e. to ensure that there are no violations of dignity and, above all, that the child is handed over to the intended parents voluntarily after the birth.
It is therefore important not only to draft the surrogacy contract well (and cleverly), but also to monitor the entire process up to the handover of the child to the intended parents in the light of the requirements of German law and, if necessary, to document it. In this way, we have already had a large number of decisions from countries that permit surrogacy recognised by German courts and registry offices.
However, in addition to the aspects of public order and special foreign decision-making quality, it was almost always necessary to prove the genetic ancestry of at least one intended parent. The Federal Court of Justice accepted this in its fundamental decision from 2014, but some courts have since overruled this and have also recognised without genetic procreative contribution accepted, including the Berlin Court of Appeal and the Sinsheim Local Court:
In their view, the recognition of a foreign decision that awards legal parenthood - only - to the intended father and at the same time states that the surrogate mother is not a legal parent no longer depends on the intended father also being a legal parent. genetic is related to the child. If the foreign decision has already been before birth of the child, the principle of the truthfulness of civil status management in civil status law also does not require the first name and surname of the surrogate mother to be entered in the main entry of the birth register.
With regard to the parent position Mother the legal assessment of maternity under the law of the foreign surrogacy state regularly differs from that under German law. This is because the intended mother, not the surrogate mother giving birth to the child, is the legal mother of the child.
Who is the father of the child differs depending on the legal systems involved. In the country of birth of the child, the spouse of the surrogate mother, if present, does not usually become the father, as the respective national law usually recognises the intended parents as legal parents. From the perspective of German law, however, the situation is different. Here the so-called Private international law is applied. It states that the law to be used for the allocation of the child to one or both parents must be determined. In this respect, the law of the country in which the intended parents reside is possible. habitual residence but it is also possible to have the right of the respective Nationality or even the country with which the parents were Married couple are most closely connected. Testing and determination is a very complex process that requires special expertise and experience.
The applicable law must relate to the parent-child relationship; in the opinion of the BGH, the child does not normally have a habitual residence in the country of birth. It derives its residence from that of its intended parents. If the child travels to Germany with its intended parents immediately after birth, the law of the country of birth - according to which the intended parents have become the child's legal parents - cannot be used as a basis. This would only be different if they had a habitual residence there or were nationals of that country or were closely associated with it as a married couple... In this respect, too, early specialist legal advice on the existing options is advisable.
If parenthood is not based on a court decision in the country in which the child was born by the surrogate mother, the law of parenthood is based on German family law. The intended mother, who consequently does not become a mother in Germany, only has the option of Adoption. But there are Exceptions:
Various national laws can be used for paternity outside the foreign law at the place of birth or surrogacy, for example the law of his or her country of origin. Nationality or the deviating one, ordinary Whereabouts. It is therefore already difficult to establish paternity in relation to the child if several conflicting legal systems come into consideration. It becomes even more problematic in the case of married surrogate mothers. This is because from a German legal perspective, for example, her husband would be the father of the child, which means that this parental position is occupied and would first have to be removed in order to become the father.
However, if the surrogate mother is not married, the intended father can recognise his paternity with the consent of the surrogate mother. Under German law, this is possible even before the birth. However, this requires a public document confirming paternity, i.e. from a notary or a German consulate. Unfortunately, not all German diplomatic missions abroad carry out these certifications.
Things get more complicated with non-German intended fathers. This is because German parentage law often does not apply to them, which means that Foreign representations of the intended father must be involved in order to be able to legally establish paternity at all.
In addition to the possibility of having a foreign court decision recognised in Germany, an official, ministerial or notarial deed, decision or certificate could also be considered as a decision. The extent to which this is permissible in individual cases must be examined carefully. It is therefore advisable to seek legal advice in advance when selecting a country in order to avoid any unpleasant surprises later on.
In a decision from 2023, the Higher Regional Court of Celle ruled that even a foreign court decision rejecting the child's birth certificate in conjunction with official documents is not sufficient for it to be recognised in Germany. The foreign court had determined that the intended parents had undoubtedly become the legal parents of the child, as stated in the birth certificate and ministerial confirmation.
A judicial determination was therefore not possible, which is why the application was rejected. The intended parents had argued that the reasons for the decision in conjunction with the other documents were sufficient as a decision, but the Higher Regional Court took a different view and rejected the application for recognition.
Recognition of paternity with the consent of the surrogate mother, irrespective of the unaffected issue of maternity, means that the intended father is also the legal father of the child and, with the consent of the surrogate mother, the child can be born. his child can legally enter the Federal Republic of Germany. However, leaving the country of birth and entering the Federal Republic is characterised by special requirements. Without sufficient Documents neither is possible.
To enter the country, a Passport or Entry visa of the child is required. However, the child will only receive a temporary German passport if one of the parents is German and legal parentage can be proven. The German embassies are responsible, specifically the consular sections in the country in which the surrogacy was carried out. For example, a formal acknowledgement of paternity with a declaration of consent from the surrogate mother is required for the passport to be issued. Both can be notarised by a German consulate.
If paternity cannot be recognised because the surrogate mother is married, for example, the problems of leaving and entering the country become greater. Although the intended parents regularly receive a Birth certificatein which they are named as parents. However, this does not immediately entitle them to a German passport. This is because the German parentage required for this must be formally established. This is done, for example, by the formal recognition of paternity requiring consent.
If this is not possible because, for example, notarisation is refused or the surrogate mother is unable to travel to the consulate, attempts must be made to leave and enter the country using existing documents, in particular the foreign birth certificate. Early legal advice and support with regard to the preparation and implementation of the exit and entry modalities is therefore highly recommended.
The entry merely biological or genetic parents in the birth register is not permitted in the opinion of the BGH. The birth register only serves to Documentation of the legalbut not (also) to a deviating biological or genetic Parenthood. Accordingly, the principle of Register truth not on the biological or genetic truth, but rather demands that the existing Legal situation is correctly reproduced. Consequently, when notarising the birth, the at the time of birth existing legal parental status is decisive. In cases of recognised foreign (prenatal) parentage decisions, this means that the woman who gave birth to the child (surrogate mother) does not have to be entered in the register of births because at the time of the birth she was the legal parent of the child. not the legal mother of the child was.
It is still unclear whether this also applies to postnatal parental decisions apply. Registry offices and family courts have so far implemented this differently: Some issue subsequent certificates after the surrogate mother is initially recognised as the legal mother in the Main entry documented, the intended parents also bear the responsibility for the birth of a child due to the effect (back-)related to the time of birth. post-birth order immediately (and for the first time) in the main entry without subsequent notarisation. This complicated and legally unresolved situation therefore also requires counselling and representation by our experienced experts in fertility law.
Since, according to German law, a child must always have a mother and a father, the Designation of same-sex parents in the civil register is problematic. This is because neither two fathers nor two mothers can actually be registered as parents. In the case of two female parents, the Federal Court of Justice has accepted that one spouse is designated as the mother and the other neutrally as the "parent". In contrast, the legislator has stipulated that in the case of an adoption by same-sex spouses, their designation as parents should be either mothers or fathers. An adopted child therefore has two mothers or two fathers, without additions such as co-father or co-mother.
Since there is no regulation for surrogate motherhoods, as these are prohibited in Germany, we believe that the wording could be used as a guide due to the recognisability of corresponding foreign decisions.
The ban on surrogacy in Germany also has an impact on tax law. In October 2021, the Münster Fiscal Court ruled that the costs of surrogacy should not be taken into account as extraordinary expenses when calculating income tax. The court referred to the provisions of the Embryo Protection Act (ESchG), which does not permit surrogacy in Germany.
The lawsuit was brought by two married men who had used the services of a surrogate mother in California and wanted to claim part of the costs from the tax office as part of their income tax return. The Federal Fiscal Court (BFH) confirmed this and clarified that costs for artificial insemination can only be taken into account as extraordinary expenses if the treatment justifying the expenses does not violate the Embryo Protection Act (ESchG).
There is a new, significant ECJ ruling for EU member states, according to which birth certificates from one member state are to be recognised in other EU member states without further ado. This could have considerable consequences for parenthood - including surrogacy - as it would render judicially recognisable decisions within the EU obsolete.
The draft of the EU Commission from December 2022 (2022/0402) for a European parenthood: In order to address the problems of recognising parenthood for all purposes and to fill the existing gap in Union law, the Commission proposes the adoption of Union rules on international jurisdiction in parental responsibility matters (determining which Member State's courts have jurisdiction in parental responsibility matters, including the establishment of parenthood in cross-border cases) and on the applicable law (determining the national law applicable in parental responsibility matters, including the establishment of parenthood in cross-border cases), including the establishment of parental responsibility in cross-border cases) and on applicable law (determining the national law applicable to parental responsibility cases, including the establishment of parental responsibility in cross-border cases) in order to facilitate the recognition in one Member State of parental responsibility established in another Member State. The Commission also proposes the creation of a European Parenthood Certificate which children (or their legal representatives) can apply for and use to facilitate proof of parenthood in another Member State.
Parenthood should in future independent of it should be, how the child was conceived or born and also regardless of the type of family of the child. Same-sex parents and the recognition of parenthood of a child adopted domestically in a Member State are included. The draft also states that parental recognition should apply regardless of the nationality of the child and the nationality of the parents, i.e. it should be based on the habitual residence. Parenthood established in one EU Member State should then be recognised in all other Member States without any special procedure. The draft provides that court decisions and authentic instruments issued in a Member State with binding legal effect and authentic instruments without binding legal effect are to be recognised in other Member States with the formal probative value applicable in the Member State of issue.
It remains to be seen whether, and if so when, this will be implemented. The proposal must be adopted unanimously in the Council. In view of the position of some Member States, this is likely to be questionable.
As a specialist law firm for family law with particular expertise in the area of the desire to have children and many years of experience with surrogacy, we provide you with legal support from the planning of the surrogacy to the return with all formalities to Germany and a possible adoption. In particular, we review and draft contracts between intended parents and surrogate mothers as well as surrogacy agencies.
Important facts about surrogacy summarised
Today, both medicine and the law offer couples who wish to have children a wide range of options for becoming parents. But what rights and restrictions apply to those affected in Germany and what options are available abroad? Specialist family and medical lawyer Dr Oldenburger advises nationally and internationally on all legal issues from parentage law to the Embryo Protection Act. He supports couples who wish to have children from the planning stage to the realisation and legal protection of the family. Below we give you an overview of the current possibilities of medicine, how they can be utilised and which legal limits and consequences must be observed.
Working as a lawyer in the field of fertility law requires in-depth cross-legal knowledge of family, medical and social law. As there is no specific specialist lawyer for fertility law, specialised lawyers for family law and/or medical law such as Dr Oldenburger are active in this complex field.
In the law of statutory health insurance stipulates that married opposite-sex couples are entitled to artificial insemination. To do so, they must provide their own gametes, i.e. sperm and eggs. A doctor who does not later carry out the artificial insemination must have given the couple a detailed consultation beforehand. advise. Both partners must have an HIV test. The woman must be fully immunised; rubella, chickenpox and whooping cough are particularly important. Both partners must also be at least 25 years old, the woman younger than 40 and the man younger than 50. If all legal requirements are met, the costs of artificial insemination are covered by health insurance. half adopted.
If one of the legal requirements is not met, the following could Private medical treatments be taken into consideration. However, the Embryo Protection Act (ESchG) prohibits doctors from artificially fertilising an egg in order to transfer it to a woman who is willing to carry the fertilised egg to term for another woman (so-called surrogacy). The same applies to the removal of an egg for the purpose of fertilising it and then transferring it to another woman. In this case, the only option is to look abroad for egg donation or surrogacy options, for example.
If a couple separates after their gametes have been used for artificial insemination and frozen, i.e. cryopreserved, it must be clarified which of them can dispose of the cells. Can the man use them for a transfer into the uterus of his new girlfriend or can the woman use them herself (or a surrogate mother abroad) without the man's consent?
However, an irrevocable commitment would also be ineffective because it would violate fundamental principles of family law and constitutional law. The legal system does not recognise a contractual obligation of the spouses to a specific family planning. This also applies if the child is not to be conceived naturally but by heterologous insemination. If the husband revokes his consent before the insemination leading to the pregnancy has been carried out, he is only liable under the consent agreement for those obligations that had already arisen prior to the revocation (e.g. liability for clinic costs).
Only from the Time of insemination a revocation of the consent agreement is possible. not is no longer possible. With insemination, a process has begun which - assuming normal progression - irreversibly leads to the birth of a child. In this respect, a fait accompli has been created. A cancellation by the man at this point in time could no longer prevent the birth of the child, even if the other parties involved were prepared to accept the man's change of heart. Therefore, a revocation at this point would ultimately no longer concern the consent to the heterologous insemination, but would only represent the man's attempt to ward off the consequences that would necessarily result for him from the heterologous insemination carried out with his consent.
According to the Federal Court of Justice, as long as there is no legal regulation, the solution cannot be that the man, who has decisively contributed to the birth of the child through his consent to heterologous insemination, is given the opportunity to evade his responsibility for the child by contesting it at his discretion on the basis of general considerations of justice.
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