In this article, we talk about everything related to surrogates in Germany for our pride series. Many parents who are unable to have biological children, including gay men, might think about surrogacy for their family planning. But, it’s important to note that surrogacy isn’t only illegal in Germany, but it’s a criminal offence for doctors or medical professionals who help someone. This also includes egg donation from one woman to another for any reason.
What the German government says about surrogacy
The word for a surrogate in German is Leihmutter, and it comes from the verb leihen or to lend and Mutter or mother, so it’s essentially a loaned mother. While the adoptive parents and the children of a surrogate mother aren’t persecuted under the law, they are still not recognized as the parents of the child outside of legal adoption.
Parents who want a child, but are having fertility issues or are not capable of conceiving a child are said to have a Kinderwunsch, which literally translates to “children wish” or a desire for children. This can normally be fulfilled through a fertility clinic where a woman will go through hormone treatments, IVF, or purchase donor sperm (which falls into a legal category that egg donation does not).
Women in relationships and single women have the ability to pay for this service. For gay men who are not biologically female, this possibility becomes impossible and often leaves them searching for a surrogate mother or a way to adopt children.
Why adoption in Germany is so hard
The first obstacle that couples might face is Germany’s adoption process. One of the main obstacles is that for every child that is put up for adoption in Germany, there are anywhere from 6 to 10 people competing to become that child’s parents. Another problem is that the biological parents have a say in which parents are accepted, so their biases play a role in this as well, which means gay couples face discrimination from both adoption agencies and the biological parents.
For people in a gay marriage or a Lebenspartnerschaft, it isn’t possible for both partners to adopt a child. Only one partner can adopt the child and be the sole parent, or they have to go through a successive adoption process where one parent will adopt the child, and the other will apply to have the adopt the child as well afterwards. A Lebenspartnerschaft (gay marriage) can be turned into marriage now legally which allows for adoption, but the bureaucratic rules are often more complicated than they seem.
The issue of international adoption is often an even worse situation because one partner will have to apply to adopt a child as a single parent without letting that government (in the country they’re adopting from) know that they are in a homosexual relationship. There are, however, countries that do allow same-sex couples to adopt. If both parents legally adopt a child in one of these countries, they can apply to have the adoption recognized in Germany.
The documents needed for this process can be pretty complex since heterosexual couples can adopt a child as the legal mother and father, but for same-sex couples, this becomes a bit strange since gay adoption was only recently legalized. There is little information about this online, so going to an agency that accepts gay couples would be the best place to find more information.
How to use fertility treatment in Germany
For heterosexual partners, if the mother makes use of a sperm bank, her partner is automatically considered the father with her consent. For lesbians going through the same process, this isn’t possible. The second mother will have to go through to adopt the child as their “stepchild.”
Cis homosexual men are limited to the former adoption process because surrogacy isn’t legal.
For people who are gender non-conforming, there is little information out there. The only thing we could find was a couple in Hessen in 2020 who had a baby, and the parent who identified as non-binary wasn’t recognized as a parent because they couldn’t be added as a mother or a father. The only option open to them was to add their information and gender that was assigned to them at birth.
For transwomen, they only have the possibility of being recognized as the legal father, and for transmen, there is no process for them to acknowledge their rights as a father of a child, so that might only leave them with the rights as the biological “mother” according to German law, or if their partner is the biological “mother” then adopting the child as a step child. Another issue with this is that the German government also apparently uses the gender and name someone was given at birth even after legally transitioning for a child’s birth certificate.
The reason why trans* people in Germany face so much discrimination when it comes to becoming a parent most likely has to do with the fact that it wasn’t until 2011 that the German government stopped requiring forced sterilization as a prerequisite to transitioning. This was also the case in Sweden where the government is currently paying reparations to the people impacted, and there is a lawsuit against the German government right now asking for the same compensation.
Because the German government is not able to control international surrogacy, they wrote a 75-page document to speak to how they feel about international surrogacy by country. In the document, they define what exactly surrogacy is under German law: “When a mother gets pregnant and legally binds herself to give up the child to a third party directly after the child’s birth.”
The problems surrounding surrogate motherhood are a mixture of exploitation in countries where mothers might not have the ability to find a way to support themselves financially in another way AND purely cultural reasons. One of the main problems surrounding the issue of surrogacy is that both sides feel strongly that they’re right for supporting surrogacy or wanting to abolish it completely. Since we’re an insurance company, we’ll just continue to let you know what the facts are, so you can decide for yourself.
If a couple (regardless if they are same-sex or not) were to hire a surrogate mother in a foreign country to give birth to a baby for them and bring that baby back to Germany, the surrogate mother would have rights as a mother and no other mother would have legal rights as a mother. For gay men, this means that there will only be one legal parent while the other will have to adopt the child as a stepchild (which is already the case for adoption for same-sex couples and for the second mother of a lesbian couple who have children together).
One of the main problems is that “it cannot be ascertained that the child can build an undisturbed relationship with the Wunschmutter (the mother who desired the child)” [this is our translation from the 75 page document mentioned above]. If two men are adopting a child, then this clearly cannot be ascertained. They also go into more “hypothetical” situations to justify the ban on surrogacy like how a child who was from the egg of one woman and birthed from another wouldn’t know who their real mother was if the donor mother died, so therefore surrogacy should be banned. While most arguments begin with speaking about exploitation, it seems like biology is a bigger factor in the ban from the German government.
Germany’s stance is to make it unnecessarily difficult for someone to go through with a surrogacy internationally to prevent it from happening.
Laws and provisions against medical personnel
They can go to prison for up to three years for helping a surrogate mother in her endeavour to give up a child to a third party after its birth.
Another thing that isn’t legal is when the egg cell of one woman is used in another woman who gives birth to the child. This is to avoid psychological problems that a child might have when they realize that the woman who gave birth to them is not genetically their mother. In the above-mentioned 75-page document, this appears to be quite the problem with them hypothesizing how a child might feel if the woman who gave birth to them was dead and what sort of identity problems that might cause. There is no exception for lesbians.
As for sperm donations, the only law in place is that the sperm of a dead person is not allowed to be used. The reason this is still legal is that it is assumed that the loss of a genetic mother could cause psychological problems while the loss of a genetic father will apparently not.
The reason why only doctors, fertility clinics, and medical professionals are criminalized is that the donor or surrogate mothers are almost always acting out of altruistic measures, and it is up to professionals to keep them safe according to the German government.
There is a lot surrounding this topic, and we were only able to provide the basic information. We hope that this has helped at least provide a bit of insight into surrogacy in Germany.