SURROGACY - LEGAL SITUATION IN GERMANY

Recognition of parenthood in foreign surrogacy

What is the legal situation in Germany? What do we have to consider in the case of surrogacy abroad? How is parenthood legally recognized in Germany in surrogacy cases?

1. The ban on surrogacy

Surrogacy is forbidden in Germany.

According to Section 1 Paragraph 1 No. 7 of the Embryo Protection Act (ESchG), it is a criminal offense to carry out artificial insemination on a woman who is willing to leave her child to a third party permanently after the birth (surrogate mother) or to her to transfer a human embryo.

According to § 13 c of the Adoption Placement Act (AdVermiG), the placement of surrogate mothers is prohibited. Pursuant to Section 14b (1) and (2) AdVermiG, anyone who operates a surrogate agency or receives or is promised a pecuniary benefit for the surrogate agency is liable to prosecution.

2. No Criminal Liability of Surrogate and Intended Parents

The surrogate mother and the intended parents themselves are not liable to prosecution under the Embryo Protection Act (§ 1 Para. 3 No. 2 ESchG and § 14 b Para. 3 AdVermiG). As a rule, they cannot be punished for child trafficking under Section 236 (1) of the Criminal Code (StGB) . In the alternative considered here, this fact presupposes:

as far as the surrogate mother is concerned (§ 236 Paragraph 1 Sentence 1), that she leaves her child to a third party in the long term, grossly neglecting her duty of care or upbringing and is doing so for a fee and

as far as the intended parents are concerned (§ 236 Para. 1 Sentence 2), that they take the child in permanently and pay a fee for it, if the mother has left the child to them "with gross neglect of their care or upbringing". . The latter results from the reference to the "cases of sentence 1".

The grossness of the breach of duty presupposes that the act is objectively and subjectively serious. It does not automatically result from the child being left to the other person, even if it is for a fee.

In the official justifications, the special function of the feature, which limits criminal liability, is emphasized, which is intended to exclude socially accepted processes such as placement with relatives or the establishment of similarly recognizable care relationships from the offense ( Bundestag printed publication 13/8587 , p. 40). Therefore, the assumption of a gross breach of duty is ruled out in any case if the child's well-being would be far more endangered as a result of unfavorable living conditions for the parents than for the intended parents, who want to achieve the best for the child and are probably also able to do so. The situation is similar to the release of an infant for adoption (see BGH, decision of December 10, 2014, XII ZB 463/13, Rn. 49 f., BGHZ 203, 350), which is also not rated as a "gross breach of duty" by the mother.

Since the element of the offense of "gross neglect of the duty of care and upbringing" is not given, it is irrelevant whether the men pay the mother money for the child. That alone is not sufficient for the fulfillment of the facts of § 236 StGB.

Accordingly, the surrogate mother and the intended parents are usually not liable to prosecution. The surrogate mothers are usually satisfied that the child will be in good hands with the intended parents and will have the best chances. The surrender of the child does not constitute a gross breach of duty.

Apart from that, § 236 StGB does not belong to the foreign offenses listed in § 5 StGB with a special domestic connection and to the foreign offenses listed in § 6 StGB against internationally protected legal interests to which German criminal law applies regardless of the law of the crime scene. The provision is therefore not applicable to surrogacy abroad anyway.

3. Surrogate mothers living in Germany

Surrogate mothers usually do not carry their own egg to term, but an egg from another woman that has been fertilized "in vitro" with the semen of the order father before implantation. This is not possible in Germany because the doctors would then be liable to prosecution under Section 1 Paragraph 1 No. 7 ESchG.

However, it does happen that a woman agrees to leave her child in the care of a gay couple because she feels overwhelmed and assumes that the child will be in good hands with the gay couple and will have the best chances. As explained, this is not usually punishable under Section 236 of the Criminal Code.

The best way for those involved to proceed in such cases depends on whether or not one of the men is the biological father of the child.

3. 1. The child is biologically descended from one of the two men

If the child was conceived with the sperm of one of the men, the biological father can, with the consent of the mother, recognize paternity for the child before birth. His partner can then become the second legal parent of the child after the birth of the child by way of stepchild adoption. Stepchild adoption is only possible if the mother consents to it.

Or the biological father adopts the child with the consent of the mother after the birth. The father then only has to agree to the subsequent stepchild adoption by the partner.

3. 2. The child is not biologically descended from either man

Even if the child is not biologically descended from either man, either man can acknowledge paternity of the child. The other man can later become the child's second legal parent by way of stepchild adoption with the consent of the birth mother. The acknowledgment of paternity is effective regardless of whether the child is biologically descended from the acknowledgment party or not. The acknowledgment of paternity by a "stranger" is therefore neither punishable as a falsification of civil status - § 169 StGB - nor as an indirect false certification - § 271 StGB. ( see here on the possible criminal liability of the acknowledgment of paternity by strangers )

However, the paternity of the acknowledging person can be challenged in court by the mother within two years of the acknowledgment - without justification - if she changes her mind and wants the child back (cf. § 1600b para. 1 BGB). The Higher Regional Court of Stuttgart ruled on May 17th, 2017 - 11 UF 69/17 - that the legal father, because of circumventing the legally provided way of adoption with the participation of the youth welfare office, "in view of the de lege lata existing ban on substitute or surrogacy cannot enjoy special legal protection”.

It is therefore legally safer for the men if one of the two men adopts the child after the birth. As a result, the biological mother loses her legal parental status and she can no longer withdraw her consent to the adoption. The subsequent stepchild adoption by the second man therefore only needs to be approved by the father.

4. Parentage of a child born abroad

If a child is born by a surrogate mother abroad for German intended parents, it is questionable whether the parentage of the child is to be assessed according to foreign law or German law. Art. 19 Para. 1 EGB is decisive in this respect . According to this, three alternatives can be considered, the residence statute (sentence 1), the personal statute (sentence 2) and the marriage effect statute (sentence 3).

According to the case law of the Federal Court of Justice, the three alternatives are basically equivalent links (BGH, judgment of May 3, 2006, XII ZR 195/03 , para. 12, BGHZ 168, 79, and decision of August 3, 2016, XII ZB 110 /16 , para. 8, NJW 2016, 3171).

In addition, the Federal Court of Justice ruled that the parent-child assignment based on status law should be based on the time of the child's birth, because this is by operation of law. A reassessment of the father-child assignment at the time of entry in the birth register does not have to be carried out after a father-child assignment has already taken place by operation of law. Because the first legal determination of paternity, according to the sense and purpose of the alternative connection in Art. 19 Para. 1 EGBGB, must not remain in limbo until the later entry of the birth in the birth register (BGH, decision of 19.07.2017, XII ZB 72 /16 , NJW 2017, 291, and BGH, decision of June 20, 2018 - XII ZB 369/17 ; NJW 2018, 2641.

5. Parentage of Children in Surrogacy Cases

In countries where surrogacy is legal, surrogacy law usually allows for the intended parents to be entered on the birth certificate, not the surrogate mother and her husband as the child's parents.

According to German law of descent, the following applies:

If the intended parents had planned to return to Germany with the child soon after the birth, the child has its "habitual residence" in Germany at the time of its birth ( Federal Court of Justice, ruling of March 20, 2019, XII ZB 530/17 , NJW 2019, 1605). Therefore, the parentage of the child is subject to German law according to its "residence statute" (Art. 19 Para. 1 Sentence 1 EGBGB). According to this, the surrogate mother is legally the mother of the child (§ 1591 BGB ). If the surrogate mother is single, the child has no legal father under German law. If the surrogate mother is married, the surrogate mother's husband is the legal father of the child (§ 1592 No. 1 BGB).

If, on the other hand, the child's descent is determined according to the mother's personal status, the child's descent is subject to the mother's home law (Art. 19 para. 1 sentence 2 EGBGB). This home law also applies if, in the case of married surrogate mothers, the personal status of the father is taken into account. The child's parents are then evident from the birth certificate issued in his or her country of birth. There either both intended parents are listed as parents of the child or only one of them.

If the parentage of the child in the case of married surrogate mothers is determined according to the marriage effect statute, the parentage of the child is also subject to the mother’s home law (Art. 19 para. 1 sentence 3), so that the persons named in the birth certificate are the parents of the child.

If alternatively appointed legal systems assign different fathers to the child at birth, the prevailing opinion, according to the principle of favourability, gives preference to the legal system that leads to the "real" father of the child. According to our legal opinion, this is the homeland right of the mother, because according to it the man is the legal father of the child with whose seed the child was conceived. If his partner is also listed as the father in the birth certificate, this is also legally effective according to the mother's homeland law.

6. Prohibition of surrogacy versus best interests of the child

This was initially not recognized by the German courts (see our list of jurisdictions ). They gave more weight to the ban on surrogacy than to the best interests of the child.

The courts were of the opinion that the foreign legal provisions on the child's parentage should not be applied because this would lead to a result that was incompatible with essential principles of German law (violation of the German "ordre public", § 109 para. 1 No. 4 FamFG , see below). The parents of the child in the legal sense are not the German sperm donor and his husband, but the surrogate mother and her husband. The child therefore does not have German citizenship.

Accordingly, the German missions abroad refused to issue visas for the children and the registry offices refused to enter the birth of the child in the German birth register.

The Federal Court of Justice did not follow this view. He issued two decisions on the issue of surrogacy: decision of 12/10/2014, XII ZB 463/13, and decision of 09/05/2018, XII ZB 224/17. You can view and download the decisions here .

The Federal Court of Justice has approved in the decisions that the parentage of the children is determined according to the homeland law of the surrogate mother.

Its decisions dealt with the following issues:

In both cases, one of the intended parents was genetically related to the children through sperm donation, while the surrogate mothers were not genetically related to the children because they each carried a foreign egg.

The surrogate mother was single in the first case, married in the second. The intended parents had entered into a surrogacy agreement with the single surrogate and with the married surrogate and her husband. From the facts of the second decision it follows that the intended parents had undertaken in the surrogacy contract to pay a basic salary as well as additional payments for the maintenance of the surrogate mother during the pregnancy as well as lump-sum allowances and other things.

In both cases, the competent American district courts ruled before the children were born that the two intended parents were legally the children's parents. The decisions were each based on a substantive examination, which, in addition to the effectiveness of the surrogacy agreement, also dealt with the associated change in the status sequence (parenting of the intended parents).

The decisions of the Federal Court of Justice are based on the following considerations:

a) According to Section 109 Paragraph 1 No. 4 FamFGthe recognition of a foreign decision is excluded if the recognition of the decision leads to a result that is obviously incompatible with essential principles of German law, in particular if the recognition is incompatible with fundamental rights (ordre public). A foreign judgment is not incompatible with this if the German judge - had he decided the case - would have come to a different conclusion due to mandatory German law (prohibition of révision au fond). Rather, the decisive factor is whether the result of the application of foreign law in the specific case is in such strong contradiction to the basic ideas of the German regulations and the ideas of justice contained therein that it appears intolerable from the German point of view. § 109 paragraph 1 no.

The Federal Court of Justice denied the violation of German ordre public on the basis of the following considerations:

b)A recognition of the parenthood of the intended parents is out of the question if the human dignity of the surrogate mother has been violated. This is the case if the surrogacy is carried out under circumstances that call into question the voluntary cooperation of the surrogate mother, or if essential circumstances remain unclear, for example because information about the surrogate mother's person, the conditions under which she agreed to carry out the has declared that children are willing and there is no agreement reached or if fundamental procedural guarantees have been disregarded in the foreign court proceedings. The fact that the surrogate mother received money for it or that there is a social gap between her and the intended parents does not call into question the voluntariness of participation.

c) If the effectiveness of the surrogacy agreement and the legal parenthood of the intended parents have been determined by the competent foreign court in a procedure that meets the requirements of the rule of law, the decision guarantees, in the absence of indications to the contrary, that the surrogate mother has made a free decision and that the release of the child to the intended parents. Then the situation in terms of the surrogate mother's willingness to release the child to the intended parents is comparable to an adoption. In this case, the mere fact that a surrogacy was carried out does not violate the human dignity of the surrogate mother.

d) The legislature has banned surrogacy mainly from a general preventive point of view. Penal provisions are limited to domestically performed surrogacy. In other countries, surrogate motherhood is legally carried out, with the result that the child must now also be included in the considerations as a legal entity.

e) For the recognition, it is therefore crucial to focus on the best interests of the child, and therefore on the rights of the child under Article 2(1) in conjunction with Article 6(2) of the Basic Law and Article 8(1) of the ECHR, which is also a child's right ensure legal attribution to both parents.

The surrogate mother and her husband are not legally the parents of the child under their home law (flaky family relationship). This corresponds to the fact that the surrogate mother and her husband do not actually take on the position of parent to the child and, unlike the intended parents, do not want to take over the care of the child or its upbringing. The intended parents, on the other hand, want to take on the parental position and give the child the attention it needs for its healthy development.

If the child's well-being is the focus of consideration, it should be noted that the child has no influence on the circumstances of its birth and cannot be held responsible for it. The protection of the child must not therefore be less because it was carried to term and born by a surrogate mother.

"The national legislature should therefore in any case be prevented from refusing to recognize the parent-child relationship between intended parents and child intended by the surrogacy agreement solely on the basis of general preventive considerations that (further) "circumventions" of the domestic ban on surrogacy should be prevented ."

Therefore, the German ordre public is not violated if the foreign law gives priority to social parenthood as a conscious and lifelong parental responsibility with regard to the well-being of the child and comes to the conclusion that a surrogacy agreement that fulfills the framework conditions for the protection of the surrogate mother is legally recognised.

f) This applies in any case if an intended parent, namely the sperm donor, is also the genetic parent of the child and the surrogate mother is not genetically related to the child. The Federal Court of Justice left open whether a different assessment is appropriate if no intended parent is genetically related to the child or if the surrogate mother is also genetically the mother of the child.

7. Acknowledgment of Parenthood of Intended Parents

If the intended parents can present a decision from a court or an authority in the child's country of birth that one or both of them are the legal parents of the child, they can apply to the German family court pursuant to Section 108 (2) sentence 1 FamFG for the recognition of this decision apply for. The decision of the family court is binding for the courts and administrative authorities (section 108 subsection 2 sentence 2 in conjunction with section 107 subsection 9 FamFG).

The prerequisite is that the foreign court or the foreign authority has carried out a substantive examination which, in addition to the validity of the surrogacy agreement, also deals with the status consequence (parent) linked to it. On the other hand, mere registration or certification of the family relationship is not eligible for recognition (see the previous section).

The family court in the district of the Higher Regional Court in which the intended parents or child usually reside has exclusive jurisdiction for the decision, namely the family court in whose district the Higher Regional Court has its seat. The District Court of Schöneberg decides for the district of the Berlin Court of Appeal.

If the parents and the child are not in Germany at the time the application is submitted, the family court in the higher regional court district in which the interest in the determination is known or the need for care exists is responsible. As a rule, this will be the higher regional court district in which the registry office responsible for entering the birth of the child in the German birth register is located (Section 108 (3) FamFG in conjunction with Section 5 (1) AdwirkG ).

If one or both of the intended parents are named in the child’s birth certificate and if at least one of the parents is German, the parent can apply to the registry office in accordance with Section 36 PStG for the birth of the child to be entered in the German birth register. The content of the entry results from § 21 PStG. According to Section 21 Paragraph 1 No. 4 PStG, the names of the parents must also be entered.

The registry office in whose area of ??responsibility the foreign-born person has their place of residence or last had their place of residence or has their habitual residence is responsible for the certification. If there is no responsibility, the registry office will certify the civil status case in whose area of ??responsibility the applicant has their place of residence or last had their place of residence or has their usual place of residence. If there is no responsibility, the registry office I in Berlin will certify the civil status case (§ 36 Para. 2 PStG).

If the registry office rejects the entry, the parents can apply to the family court to instruct the registry office to carry out the entry. In cases of doubt, the registry office can also bring about the decision of the court as to whether an official act is to be carried out. For the further procedure, this is considered a rejection of the official act (§ 49 PStG).

8. The surrogate is genetically the mother of the child

In its two decisions (see point 6. Prohibition of surrogacy versus child welfare), the Federal Court of Justice emphasized that it could remain open whether a different assessment would be appropriate if the child was not conceived with an anonymous egg donation and the surrogate mother is also genetically the mother of the child. We assume that the German courts will not decide otherwise in such a case.

The decisive factor for the Federal Court of Justice was that the surrogate mother and possibly also her husband did not actually take on a parental position for the child and neither wanted to take on the care for the child nor its upbringing, while the intended parents took on the parental position and the child the responsibility for its beneficial development wanted to give the necessary attention. The situation of the surrogate mother is therefore comparable to an adoption in terms of her willingness to hand over the child to the intended parents.

However, this applies equally if the surrogate mother is genetically the mother of the child and if it is ensured that she and her husband voluntarily agreed to the surrogacy contract and voluntarily surrendered the child to the intended parents.

9. Genetic paternity of either intended parent

In its two decisions (see point 6. Prohibition of surrogacy versus child welfare), the Federal Court of Justice also emphasized that it could remain open whether a different assessment would be appropriate "if no intended parent is genetically related to the child", i.e. if the child is not was conceived with the seed of either intended parent.

We assume that the intended parents will then have to reckon with the fact that the family court will refuse to recognize the foreign decision on their parenthood. Because if foreigners want to take a "foreign" child back to their home country, it is imperative that the child be adopted. If such an adoption takes place without the cooperation of the adoption agencies of the child's home country and the receiving country, the German courts will refuse to recognize the international adoption, even if the two countries are not contracting states of the "Hague Adoption Convention", see our guide " International Adoptions".". The intended fathers must therefore expect that the family court will accuse them of circumventing the adoption regulations in order to prevent the involvement of the adoption agencies.

10. Stepchild adoption by domestic partner

If only one of the intended fathers is recognized as the child's legal father, his life partner can become the child's second legal parent through step-child adoption. So far it has been disputed whether sentence 1 or sentence 2 of Section 1741 (1) BGB is to be applied to such a stepchild adoption. The rule is:

"(1) Adoption as a child is permissible if it is in the best interests of the child and it can be expected that a parent-child relationship will develop between the adopter and the child. Anyone who takes part in an illegal or immoral placement or removal of a child has assisted in the adoption or commissioned or rewarded a third party to do so should adopt a child only if this is necessary for the best interests of the child."

Some of the courts are of the opinion that surrogacy constitutes mediation within the meaning of clause 2 of the provision. The legislature wanted to expose surrogacy to the same sanctions as prohibited adoption mediation. In such cases, the adoption is not necessary for the best interests of the child. For this, the agreement of social and legal parenthood is not necessary. The refusal to adopt a stepchild does not put the child in an insecure social or legal situation, since the second parent can be authorized to conduct legal transactions and the legal parent is free to grant his or her partner "small custody" in accordance with Section 9 (1) LPartG.

The Düsseldorf Higher Regional Court opposed this in a decision dated March 17, 2017 (II-1 UF 10/16, Juris) and the Munich Higher Regional Court in a decision dated February 12 , 2018 (33 UF 1152/17, Juris). They have decided:

The prevention of surrogacy must not be carried out on the backs of the children concerned.

The fact that a child was born abroad with the help of a surrogate mother using an anonymous egg cell donation does not justify applying the increased child welfare requirements pursuant to Section 1741 Paragraph 1 Clause 2 BGB to the adoption. Such a constellation is usually not based on the mediation or removal of a child for the purpose of adoption (also LG Frankfurt, StAZ 2013, 222; MünchKomm/Maurer, loc.cit. marginal number 157; jurisPK/Heiderhoff, BGB, 8th edition, § 1741 marginal 26; also tending to Palandt/Götz, BGB, 76th edition, § 1741 marginal number 6; aA LG Düsseldorf, IPRspr 2012, 208; AmtsG Hamm, FamFR 2011, 551; Staudinger/Frank, aaO marginal number 34; Erman /Saar, BGB, 14th edition, § 1741 para. 13).

Art. 2 para. 1 in conjunction with Art. 6 para. 2 GG and Art. 8 para. BGH, FamRZ 2015, 240, paragraph 54 et seq.; Senate, FamRZ 2015, 1638, 1639). If this assignment is restricted, this constitutes an encroachment on this right, which requires special justification. The application of Section 1741 Paragraph 1 Sentence 2 BGB to the adoption of a child born by a surrogate mother would not do justice to its legal status guaranteed by fundamental and human rights, because this would fundamentally rule out the legal attribution of the child to the non-biological intended parent and only in exceptional cases in individual cases could happen.

In addition, the OLG Düsseldorf stated:

An adoption is in the best interests of the child within the meaning of § 1741 Paragraph 1 Clause 1 BGB if it changes the child's living conditions in such a way that a noticeably better development of his personality can be expected. According to the legislature, the aim of an adoption is that the child to be adopted is taken into a harmonious and viable family in order to provide him with a stable and balanced home. The fact that the child was born by a surrogate mother does not prevent this. In such a case, it is more in the best interests of the child that the child is also reliably assigned to the second intended parent (cf. BGH, FamRZ 2015, 240, para. 54 et seq.).

The Higher Regional Court of Braunschweig had this legal opinion in its decision of v. April 12, 2017 - 1 UF 83/13 - rejected. The Federal Court of Justice overturned this judgment with its decision of September 5th, 2018, XII ZB 224/17 and emphasized:

Rather, the legal parent-child relationship is associated with a number of other important rights and legal positions of the child, such as maintenance claims, statutory inheritance law, the name, nationality (cf. BVerfG FamRZ 2014, 449) and - in the case of foreign children - the Right of residence (cf. BVerwG FamRZ 2018, 1160). Contrary to what the Higher Regional Court believes, long-term family coexistence is not guaranteed without a secure parental position. Because the applicant's guardianship appointment can be changed, whereby the applicant cannot refer to her own legal status (cf. BVerfG FamRZ 2014, 1841). In addition, unlike the applicant, the applicant is not the holder of custody. The fact that the applicant, as the Higher Regional Court believes, his finding " that - assuming the applicability of the German right of descent according to Art. 19 EGBGB - the legal assignment of the child to the husband of the surrogate mother as his legal father (§ 1592 No. 1 BGB) would first have to be eliminated and a paternity challenge procedure would have to be successfully carried out for this (cf. §§ 1599 para. 1, 1600 para. 1, 1600 d para. 1 BGB). Contrary to the opinion of the Higher Regional Court, the genetic paternity of the applicant is therefore only relevant in the case of the separate question of whether a foreign decision can also be recognized if no intended parent is genetically related to the child. that - assuming the applicability of the German right of descent according to Art. 19 EGBGB - the legal assignment of the child to the husband of the surrogate mother as his legal father (§ 1592 No. 1 BGB) would first have to be eliminated and a paternity challenge procedure would have to be successfully carried out for this (cf. §§ 1599 para. 1, 1600 para. 1, 1600 d para. 1 BGB). Contrary to the opinion of the Higher Regional Court, the genetic paternity of the applicant is therefore only relevant in the case of the separate question of whether a foreign decision can also be recognized if no intended parent is genetically related to the child. 1 BGB) eliminated and a paternity challenge procedure would have to be successfully carried out for this (cf. §§ 1599 para. 1, 1600 para. 1, 1600 d para. 1 BGB). Contrary to the opinion of the Higher Regional Court, the genetic paternity of the applicant is therefore only relevant in the case of the separate question of whether a foreign decision can also be recognized if no intended parent is genetically related to the child. 1 BGB) eliminated and a paternity challenge procedure would have to be successfully carried out for this (cf. §§ 1599 para. 1, 1600 para. 1, 1600 d para. 1 BGB). Contrary to the opinion of the Higher Regional Court, the genetic paternity of the applicant is therefore only relevant in the case of the separate question of whether a foreign decision can also be recognized if no intended parent is genetically related to the child.

11. Adoption of the child by the sperm donor in the child's home country

In some countries, there is an alternative option for the genetic father (sperm donor) to adopt the child. However, such an adoption is not recognized in Germany if only a formal examination of the parental suitability of the adopter has taken place. The minimum requirement for recognition is that prior to the adoption decision, investigations into the living environment of the adoptive parent in Germany and his or her suitability as a parent have been made either by a specialist agency or by another competent agency or person.

It is therefore always advisable in such cases to involve the adoption agencies, see our guide "Adoptions abroad ".

12. Last resort: adoption in Germany

If the intended parents succeed in taking the child to Germany, but the registry office takes the view that the parents of the child are not the intended parents but the surrogate mother and her husband, and if the courts confirm this view, the intended remains Parents only adopt the child as a last resort.

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