A. Surrogacy

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.

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.

2. Surrogate mother or genetic mother - who is legally considered the child's mother?

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.

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.

4. Surrogacy options abroad

Other countries and legal systems are more open to the topic of surrogate mothers and allow surrogacy. Especially in the

• USA,
• Canada,
• Ukraine,
• Georgia,
• Greece and
• Mexico

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.

• Medical options and legal framework

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.

• Judicial participation decision necessary

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.

• Stay in Greece
  Important legal change in May 2025

Until 2014, it was necessary for the intended parents to and the surrogate mother had her permanent residence in Greece. The Greek legislator then relativised these requirements: It was sufficient for the surrogate mother to have a place of residence or temporary stay in Greece. This facilitated the search for a suitable surrogate mother from a third country and her participation in the programme there. It was therefore also possible for intended parents who were not permanently resident in Greece to arrange surrogacy in Greece with a surrogate mother who was also resident in Greece. surrogate mother not living permanently in Greece to be carried out. As a result, the demand for surrogate mothers increased. As a result, more foreign women were recruited by clinics. However, their payment remained prohibited (Greek law stipulates that both the surrogate mother and the intended parents must be paid for their services). Punishments if they do not act altruistically contrary to the statutory provisions; intermediaries of surrogate mothers who do not act altruistically can also be penalised. The place of payment is irrelevant).

In May 2025, however, following the scandal in Crete in 2023, the participation of both intended parents and surrogate mothers was changed from a merely temporary stay to a permanent one. permanent residence corrected. A merely temporary stay is no longer sufficient for both. If such a stay is only faked, there is a risk of severe penalties (also for the intermediaries). The underlying legal policy intention is primarily to prevent, or at least curb, surrogacy tourism. However, the conditions under which permanent residence (residency) in Greece exists, particularly in terms of time, are not explicitly formulated in the amending law.

In future, only permanent residents of Greece, in addition to Greek nationals, will be able to opt for surrogacy and obtain a court decision in favour of participation. If they falsely declare that they live permanently in Greece, the parenthood based on the court decision may be jeopardised. This is because the parties would then have misled the court about an essential legal requirement. This would not only be a criminal offence in the context of Greek law, but could also be a criminal offence for German intended parents. Stepchild adoption procedure become problematic. German law provides for particularly strict requirements in the event of unlawful or immoral behaviour, which is why the participation requirements for German intended parents have deteriorated considerably since May 2025 with regard to Greece.

In addition, the procedural law has also been adapted after a court decision has been received: previously, the transfer (of the fertilised egg into the surrogate mother's uterus) could be carried out immediately after the confirming court decision, but now the decision must first be final, which is likely to lead to delays.

With regard to legal parenthood, however, the requirement of permanent residence in Greece could also result in advantages for German opposite-sex couples and single women - contrary to the legal policy objectives: There is as yet no harmonised European parental law. German private international law also provides for the allocation of the child to the parents according to the law of habitual residence. Children who do not yet have their own habitual residence usually derive it from the residence of the intended parents. If these now have such a Stay in Greece their parenthood could exist without further measures in Germany (i.e. in particular without stepchild adoption after recognising paternity with the consent of the surrogate mother) by applying Greek law. The subsequent certification of the child's birth abroad would then be able to lead immediately to the parenthood of the German intended parents on the basis of the applicable Greek law. The new legal requirements are therefore not likely to be merely restrictive, but could even facilitate the establishment of parenthood.

• No payment for the surrogate mother

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.

• Intended mother must adopt

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.

• Paternity can be recognised

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.

Conclusion

Birth in Germany is generally not objectionable and does not lead to any significant disadvantages if no foreign court decision is intended.

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.

• Medical options and legal framework

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.

• Who can become a surrogate mother?

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.

• Pre-birth order in California

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.

• From the USA back to Germany with the child

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.

•  On the legal background, in particular the recognition of intended motherhood:

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).

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.

e. Argentina

 In Argentina, there are no legal regulations governing the Whether and How of surrogacy. As a result, surrogacy there is based on court decisions which, in individual cases Deviations from the birth mother principle and recognise the intended parents as legal parents. 

The decisions issued to date have all concerned altruistic, i.e. non-commercial surrogacy. There is no clear ban on surrogacy or any commercial form of surrogacy in Argentina. 

In 2017, there was an important appeal decision in Buenos Airesaccording to which children born to a surrogate mother are to be registered as legal children of the intended parents without recognising the surrogate mother as a parent. However, this decision has no binding effect outside the jurisdiction of this court. 

However, this was followed in October 2024 Judgement of the Argentine Supreme Court - with corresponding effect for the entire country: The parenthood of a male couple was rejected, as Argentinian law provides for the surrogate mother as the person giving birth as the legal mother. A different parenthood is not possible, in particular because there is no legal provision in Argentina that allows intended parents to become the sole legal parents, according to the court. 

Whether intended parents can become parents under Argentinian law therefore depends on the individual case and is subject to court decisions. The surrogate mother is basically also considered a mother in Argentina and can only be removed from this legal position by a court decision. 

Irrespective of the conditions under which non-Argentinean nationals can carry out surrogacy at all, the applicable national law of the intended parents also plays a role. Even if a court decision in Argentina establishes the parental status of the intended parents and an Argentine birth certificate and an Argentine passport are issued for the child, this does not immediately mean that the intended parents can leave and enter the Federal Republic of Germany with their child. From a German legal perspective, they are only considered to be the child's parents if this court decision is sufficiently qualified and at least one of the intended parents is genetically related to the child. To this end, a passport application could be submitted to the German embassy in Germany, for example, before applying for subsequent certification of the foreign birth or recognition of the court decision in Germany. The explanation that no German document is required for exit and entry is therefore not only incomplete and inadequate, but also extremely dangerous in terms of the exit strategy.

Another option for the intended parents is to recognise paternity before birth with the consent of the surrogate mother and thus establish a German parental authority. However, this alone is not enough to be able to act, because in addition to the attribution under parentage law, the parents need custody rights. They can only obtain this (from a German legal perspective) outside of a parentage decision recognised in Germany (procedure takes around 6 months) or a subsequently certified foreign birth on the basis of declarations made in agreement with the surrogate mother. In order for the intended parents to be able to act legally on behalf of their child, the surrogate mother must therefore not only declare her consent to the recognition of paternity to the German embassy, consular section, but also make a (joint) declaration of custody (without such a declaration, the child would not be under parental care, so that a guardianship would have to be established). For the 2nd parent position, which has not yet been filled, a Stepchild adoption procedure which also requires the co-operation and consent of the surrogate mother. 

If the intended parents obtain a court decision in Argentina that establishes their parental status, this decision could be recognised under German law. This recognition is automatic if the court decision is comparable in quality to German decisions. There are only exceptions to this if the decision is incompatible with essential German legal principles. This may be the case if the surrogate mother has been put under pressure, economically or psychologically exploited or her dignity has been disregarded - or other unlawful or immoral behaviour can be identified. However, simply circumventing the ban on surrogacy that applies in Germany is not sufficient.

Whether surrogacy can still be considered at all in Argentina as a result of the Supreme Court's decision in October 2024 appears questionable. This is because, in the absence of corrective court decisions, it will probably no longer be possible to issue a birth certificate that identifies the intended parents as legal parents. In any case, the surrogate mother will be registered there. At best, it is possible for an unmarried surrogate mother to establish the paternity of an intended parent with her consent (including joint declarations of custody). This would then be followed by a stepchild adoption procedure in Germany. 

As the case of the Italian couple arrested at Buenos Aires airport in October 2024 has shown, the procedures of the clinics and intermediaries involved in Argentina are (or were) a particular focus of the investigations. They are said to have pressurised surrogate mothers or exploited their living situation. In such cases, the recognition of a court decision from Argentina would probably not be possible in Germany. Stepchild adoption could also be problematic. If the intended parents do not think about the surrogate mother's origins, acquisition and living conditions, etc., they run the risk of not becoming legal parents, regardless of existing moral and ethical concerns.

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.

f. Mexico

Surrogacy in Mexico: Between opportunity and legal balancing act

When dealing with the topic of surrogacy abroad, one inevitably comes across Mexico. Mexico is in a phase of change. This is mainly due to the fact that surrogacy there is based on supreme court decisions, which are implemented differently in the respective states and provinces. However, legal certainty for the process, including obtaining the status of becoming parents to the child, cannot be guaranteed by judicial movements there.

The path to parenthood in Mexico is therefore fraught with challenges. Promises made by agencies that you will become parents in any case should be seen as pure hope and represent neither reliable solutions nor enforceable claims.

The law develops dynamically through court decisions. What seems possible today may change tomorrow. The real progress in recent times has not been in the law, but in the practice of individual courts. It should be noted that not every court decision is valid nationwide. For this reason, a carefully developed strategy is essential, not a superficial approach.

There are basically two procedures in Mexico, each offering a different perspective but pursuing the same goal. In essence, there are two legal axes that are related to each other but are procedurally separate:

The intended parents can have their parenthood actively established. This takes place as part of proceedings before a family court.

The surrogate mother, who becomes the child's mother but does not wish to take on the role of parent from the outset, can be released from her legal responsibility. This protects her constitutional rights and opens the door for the intended parents to obtain this status.

Both procedures must be actively prepared, initiated and carried out. They are not initiated automatically. It is also by no means appropriate to deal with these important matters „on the side“.

From a German perspective, a Mexican birth certificate alone is not sufficient to be recognised as parents in Germany. Incorrect planning and implementation in this area can lead to legal uncertainty and even rejection of parental status in Germany, which should be avoided by all parties involved.

The decisive lever for German parenthood after foreign surrogacy is court decisions, which are ideally made before the birth. This means that parenthood can already exist at the time of birth.

A widespread misconception is that the greatest vulnerability usually lies abroad. In fact, however, it lies in the area of German law, which only accepts parenthood after surrogacy under special conditions. Currently, the Federal Court of Justice generally requires a verifiable genetic connection between the child and at least one intended parent. In this respect, however, we are already conducting proceedings that question precisely this requirement and want to ensure that parenthood based on a foreign decision is recognised even without a genetic link.

What does this mean for you?

• With surrogacy in Mexico, you are operating in a dynamic legal area.
• This requires innovative solutions time and again.
• The reliance on success is a marketing measure by agencies that does not include the attainability of parental status in Germany, regardless of the birth of a child.
• Serious legal support requires special knowledge of the problem areas, including solutions or their avoidance.

Please note that recognition in Germany cannot be guaranteed. Structured analyses, examinations and procedural support significantly increase the chances of success for your parenthood. Please bear in mind that the outcome depends on various factors. These include timing, the conduct of proceedings and international coordination. For this reason, we cooperate with leading law firms in the field of surrogacy in Mexico, without publicising the operational details that make the difference in practice.

Our advisory approach is therefore always geared towards clarity and clarification, not the creation of illusions - our advice is therefore not simply „pro Mexico“ because it is attractively priced and offers opportunities for recognising parenthood there. Instead, we offer professional, context-dependent counselling to develop resilient solutions.

If Mexico makes sense in your individual situation, we will show you the way - including the associated risks. If this is not the case, we will also inform you, perhaps there are alternatives in other countries.

Conclusion: Mexico is not a shortcut to becoming parents through a surrogate mother, but it can be a suitable option under certain circumstances. Mexico can be a viable building block on the way to fulfilling your desire to have children. However, this is only possible if both legal systems - the Mexican and the German - are taken into consideration from the outset.

If you are seriously considering this topic, please do not hesitate to contact us. It's not about possibilities, but about resilient solutions.

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.

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.

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.

• Duty to co-operate

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.

• Health insurance cover for the surrogate mother

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.

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.

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.

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.

7. Entry to Germany

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.

8. Entry in the birth register

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 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).

• The cost of surrogacy varies from country to country, with a west-east divide. It is most expensive in the USA (around EUR 160,000) and cheapest in Ukraine (between EUR 45,000 and EUR 75,000).
• Parenthood after surrogacy can be recognised in Germany via a foreign decision, and there is also the option of adopting a stepchild.

B. Artificial insemination

• Fertility lawyers (artificial insemination, sperm donation, etc.)

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. 

• Advice on fertility law

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.

1. Legal situation in Germany

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 or surrogate motherhood). 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.

2. Who can use cryopreserved fertilised eggs?

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?

• The OLG Hamburg has stated that the right of self-determination of the gametes' donors is essentially relevant here. The LG Bonn has also emphasised that the right to self-determination of the gametes' donors must be guaranteed. In contrast to natural fertilisation processes and subsequent cell development, the artificial interruption again the Consent for the further use of both This is necessary because it becomes a basic requirement for reproductive medical treatment and is an expression of the freedom of reproduction protected by fundamental rights as part of the general right of personality.

• The Bonn Regional Court also refers to a decision of the European Court of Human Rights (ECtHR), Grand Chamber, in a judgement of 10 April 2007, according to which the consent of both gametes also includes the right to respect for the decision for or against maternity or paternity within the meaning of Art. 8 ECHR. This right cannot be shifted to one parent by the choice of a reproduction method, nor can it be shifted unilaterally to one parent. Compared to the natural course of the disease after the initial Fertilisation was the result of the consensual decision to artificially interruptalso the The time of the decision to have a child is artificially postponedso that until nuclear fusion and the subsequent transfer, both gametes donors have the same opportunity to decide against the conception of future human life. However, a cancellation up to the transfer does not affect the embryo's right to life.

• The ECtHR pointed out that, for example, in Austria and Italy an upstream point in time is determined by law, namely with regard to fertilisation, after which revocation is no longer possible. However, in the case decided England to a Revocability up to a transfer which the ECtHR did not consider to be contrary to European law. In this respect, the federal states are free to specify a temporal dimension for such a revocation in national law. In Germany, there is currently no such legal time limit.

• The Federal Court of Justice (BGH) also assumes that a husband must in principle give his consent to the wife. freely revoked until the time of a transfer and in this way can terminate the agreements associated with the consent. This is already apparent from an interpretation of the agreement containing the consent. When concluding such an agreement, it cannot be assumed that both intended parents wish to commit themselves without the possibility of cancellation to agree to heterologous insemination in the future even if, due to changed circumstances or even just a change of mind, a pregnancy achieved in this way is no longer desired.

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.