13. Who is recognised as the legal parent(s) of a child born following surrogacy?
The mother is the woman who gives birth to the child (Section 1591 of the Civil Code).
The father is the man who is married to the mother at the time of birth (Section 1592 number 1 of the Civil Code) or acknowledges the child with consent of the mother (Section 1592 number 2 of the Civil Code). This can be either the sperm donor, the intended father or another man, i.e. the husband of the surrogate mother. If the child has no legal father, the natural father can in principle be established as the legal father of the child (Sections 1592 number 3, 1600d of the Civil Code). Since 1 July 2018, this no longer applies to the official sperm donor, Section 1600d(4) of the Civil Code.
In cases where foreign law is applicable to questions of filiation, by virtue of Article 19 of the Introductory Act of the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB), its application is always subject to a public policy (ordre public) review. Problematic cases are particularly those in which the intended parents are assigned legal parenthood under foreign law by operation of law, even though they are not the biological parents. In the past, German courts have often tended to view this as a violation of public policy. It remains to be seen what influence the Federal Court of Justice’s decision of 2014 (see question 3) will have on future court decisions on this matter. The Federal Court of Justice itself has expressly left this question open in its subsequent decision of 2018 (see question 3).
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor Yes/No
d. intended mother No
e. intended father Yes/No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. As regards legal paternity, cf. answer to question 13. The surrogate mother's legal parentage can only be transferred to an intended parent (woman or man) by way of adoption, to which general conditions apply.
15. Is the existence of a genetic link required for establishing paternity/maternity? No. See answer to question 13.
To date, German courts have delivered relatively few judgments dealing with the recognition of foreign judgments on legal parenthood. In the above-mentioned landmark decision of 2014 and in subsequent decisions (see answer to question 3), the Federal Court of Justice has so far only argued that a possible requirement of there being a genetic relationship would be sufficiently met if only one of the intended parents is genetically related to the child and the surrogate mother is not, due to an egg donation. Whether or not recognition of a foreign judgment that awards parenthood to two persons who are not genetically related to the child is contrary to German public policy is, therefore, unclear at present.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? The persons mentioned in the birth certificate are those whose legal parenthood has been established (cf. answer to question 13). The birth certificates or other official documents do not establish parenthood, but can be used as proof of parenthood towards other authorities and courts.
a. surrogate mother No
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father No
17. Are foreign birth certificates in surrogacy cases registered in your country
According to section 108 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction [Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit, FamFG], only foreign “judgments” can be recognised. As the issuing of a birth certificate normally does not require a substantive examination by a public authority of the foreign state, birth certificates usually cannot be considered to be foreign judgments in this regard. Therefore, they cannot be recognised in Germany.