Surrogacy - Search
Norvège - Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? There are no specific provisions in the Children Act or in the Adoption Act with regard to legal parentage for children born by a surrogate mother. The woman who has given birth to the child shall be regarded as the mother. Maternity can only be transferred by means of adoption. Paternity may be established according to the provisions in the Children Act. If paternity is not established pursuant to the pater est rule, a man may acknowledge paternity. Paternity shall be acknowledged in writing either in the notification of birth or by appearing in person before i.a. the National Register, the Norwegian Labour and Welfare Service (NAV), an embassy/consulate, a midwife/doctor at an pregnancy check-up (in Norway). Acknowledgement is valid if the mother has accepted it in writing, or when the acknowledgement is given by the person whom the mother has named as the father. Paternity may also be established/changed by a court order, or changed according to a decision by the authorities. In individual cases, paternity established abroad may be recognized in Norway (strict conditions)
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. General rules for adoption will apply if the parents of a child wish to transfer parentage.
15. Is the existence of a genetic link required for establishing paternity/maternity? No
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
Not applicable. Only the parents of the child are mentioned in the birth certificate.
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
17. Are foreign birth certificates in surrogacy cases registered in your country Only when the child is born on the territory of the State.
Portugal - Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? The intended parent(s) are recognised as the legal parent(s) of a child born following surrogacy (Article 8, paragraph 7 of Law No. 32/2006). An amendment to the Law establishing the terms under which consent might be revoked by the surrogate mother up to 20 days after the child was born, thus making the surrogate the legal parent, but with no genetic ties, was rejected in 2019 by the Constitutional Court before the Bill was enacted.
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? No
15. Is the existence of a genetic link required for establishing paternity/maternity? Yes, at least one of the intended parents (Article 8, paragraph 3 of Law No. 32/2006).
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? Besides the intended parent who has consented to the use of the technique in question, other parties may be mentioned in the birth certificate (Article 20), namely the person to whom she is married or linked by registered partnership. The respective parenthood shall be established at the time of registration.
a. surrogate mother Yes
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 Competent authorities are not aware of any requests at this juncture.
Romania - Legal regulation
1. Is surrogacy regulated by a specific law in your country? No
2. Is surrogacy regulated in another way? (please specify) No. There are some notarial agreements between couples and surrogate mother before procedure and followed by adoption after birth.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No
4. Is there a legal definition of the term “surrogacy”? (please specify) Not yet, but under discussion in the Parliament.
Romania - Specific criteria
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) Yes.
b. other criteria (please specify) Not commercial
San Marino - Legal regulation
1. Is surrogacy regulated by a specific law in your country? No.
There is no specific law in Republic of San Marino.
In case of infertile heterosexual couples are guaranteed links with the Italian reference centers to proceed with the medical procedure in order to proceed with the medically assisted fertilization. Therefore, the laws that underlie these subjects are Italian.
In San Marino as in many Italian hospitals, obstetrics deals with physiological pregnancies, while for those at risk is used to have the Rimini (Italy) hospital consulting for the guarantee offered by the neonatology service. However, it is easy to say that our hospital, like many in Italy, do not have a structure that deals with fertility treatment that would require a contribution offered by a molecular biology and cellular service, and cryopreservation. We have only a gynecology and obstetrics service that deals with the health of women and pregnancy, childbirth and the postnatal period but not of assisted reproductive technology.
Those who want to make this kind of surgery have to go to an Italian structure and pay all procedures of their own pockets. San Marino covers only the pharmaceutical expenses for two cycles of therapy linked to the induction of ovulation in the woman to perform the oocytes explantation. At the failure of the second attempt, if there are no frozen embryos to replant and the couple wanted to undergo another treatment, the couple pays also drug costs.
If pregnancy occurs, after a few attempts (it makes no difference whether the first or second) through assisted reproduction techniques it will be followed as a normal pregnancy and all health coverage that are entitled to residents or citizens of the state.
The health care system provides drug treatment for two cycles of ovarian stimulation and all medical examinations pre and post implant.
To sum up:
None of the questions about surrogacy is affirmative for Republic of San Marino.
All questions related to medically assisted fertilization with the possible donation of gametes are the same answers from Italy, although the Italian Republic has bound to specific laws.
Infertility is followed free of charge by the health care system in respect of two pharmacological cycles and the pre and post implantation. The gamete extraction techniques, fertilization, implantation and embryo storage at Italian specialized structures are the responsibility of the couple as well as any subsequent pharmacological cycles to the two provided free and the possible pregnancy of control remains in the responsibility of the health care system.
2. Is surrogacy regulated in another way? (please specify) No. In case of infertile heterosexual couples are guaranteed links with the Italian reference centers to proceed with the medical procedure in order to proceed with the medical assisted fertilization. Therefore the laws that underlie these subjects are Italian.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No
4. Is there a legal definition of the term “surrogacy”? (please specify) No
Spain - Legal regulation
1. Is surrogacy regulated by a specific law in your country? No specific law, but specific provisions in more general laws
2. Is surrogacy regulated in another way? (please specify) Yes.
Surrogacy is not allowed in Spain, although it is recognized as an assisted reproductive technology in the Law 14/2006 on Assisted Human Reproduction Technologies (LTRHA) approved in 2006.
This Law declares null and void any contract agreement of surrogate motherhood conducted by a woman who refuses the filiation in favour of the contracting part or of a third party beneficiary, no matter it is with or without remuneration. It also lays down that filiation of children born by surrogate motherhood is determined by birth and that the fatherhood claim of the biological father remains possible.
Although the law in general seems to be very innovative and according to the critics, it is one of the most permissive regulations in the world, in relation to surrogate motherhood it takes a conservative character.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. It is defined in the LTRHA as surrogate gestation: gestation, with or without price, in charge of a woman who refuses motherhood filiation in favour of the contracting part or of a third party beneficiary.
San Marino - Current debate and specific situations
18. Is there:
a. any public discussion about the topic NA
b. planning of new regulation at national level NA
19. Please specify any additional relevant aspects which were not mentioned. NA
United Kingdom - Legal regulation
1. Is surrogacy regulated by a specific law in your country? No.
In part. There is no overarching law regulating surrogacy and no surrogacy regulator, as such. Legislation does, however, make commercial surrogacy arrangements illegal and recognizes altruistic surrogacy.
The procedures for setting up an arrangement for a woman to act as a surrogate for another party are subject to the provisions of the surrogacy arrangements act 1985.
Surrogacy agreements between the surrogate mother and the commissioning persons are not enforceable by law. Provisions for transferring legal parenthood from the surrogate to the intended parents are covered by the Human Fertilisation & Embryology Act 1990 (as amended 2008).
2. Is surrogacy regulated in another way? (please specify) Yes. The Human Fertilisation and Embryology Act 1990 (as amended 2008) governs treatment involving the use of donated gametes or in vitro fertilisation. The Act would also apply to surrogacy arrangements where these procedures are involved, including an assessment of the welfare of any child that might be born as a result of the treatment and any existing children that might be affected by the birth.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. In May 2016, a ruling in the Family Division of the High Court of Justice for England and Wales determined that single people can apply to be recognized as the legal parents of a child following a surrogacy arrangement. The law was subsequently changed in December 2018 to allow an application from an individual, subject to conditions, including that he/she is genetically related to the child.
4. Is there a legal definition of the term “surrogacy”? Yes. Two definitions (of Surrogate mother and Surrogacy Arrangement) in the Surrogacy Arrangements Act 1985 cover this:
England, Wales and Northern Ireland.
“Surrogate mother” means a woman who carries a child in pursuance of an arrangement.
- Made before she began to carry the child, and
- Made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable by, another person or other persons.
An arrangement is a surrogacy arrangement if, where a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
Scotland
“Surrogate mother” means a woman who carries a child in pursuance of an arrangement.
- Made before she began to carry the child, and
- Made with a view to any child carried in pursuance of it being handed over to, and the parental right being exercised (so far as practicable) by, another person or other persons.
An arrangement is a surrogacy arrangement if, were a woman whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
United Kingdom - Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: Reasonable expenses only. Under the provisions of the Human Fertilisation & Embryology Act 1990 (as amended 2008) a surrogate may receive reasonable expenses, however, “expenses” are not defined in the Act. No money or other benefits may be provided for any part of the surrogacy arrangement unless authorised by a Court.
a. refund of medical expenses N/A
b. refund of other expenses N/A
c. compensation for loss of income N/A
d. other compensation including non-pecuniary N/A
e. remuneration or comparable advantage N/A
- refund of medical expenses
- refund of other expenses
- compensation for loss of income
- other compensation including non-pecuniary
- remuneration or comparable advantage
United Kingdom - Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? NA
a. surrogate mother
b. intended parent(s)
c. gamete donor
d. facilitator
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? No
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services There are an increasing number of on-line adverts and companies advertising surrogacy packages in other countries, that are unlawful in the UK, but due to foreign servers they cannot be stopped from viewing in the UK.
d. remuneration of facilitators
e. any other unlawful practices (please specify)
Czech Republic - Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? Surrogacy is not explicitly prohibited and is commonly performed. So far this has not happened, although there are reports of overstepping Czech law. However, where there is no prosecutor (so far), there is no judge. If a plaintiff were found, any of the persons mentioned could be criminalized if they were found to have violated the prohibition against financial gain from the human body or the prohibition against trafficking in human beings, especially women and children.
a. surrogate mother
b. intended parent(s)
c. gamete donor
d. facilitator
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) Yes
For several years, the Czech Republic has been a country where Ukrainian surrogate mothers go to give birth and hand over their children to foreign clients, usually single men. However, giving birth and registering a child when both parents agree is not in itself a criminal offence. The procedure is cleverly planned by the actors into successive steps in different countries, where each partial step is legal. The Czech police have been monitoring these practices for a long time in cooperation with other countries. However, international surrogacy obviously cannot be solved without common international legislation.
Czech Republic - Specific criteria
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) No
b. other criteria (please specify) No. Surrogacy is not regulated by law. The Czech MAR Society has issued recommendations (exclusively medical indications, weighting with the applicants' own gametes, transfer of a single embryo, age of the surrogate mother under 49, surrogate mothers’ permanent residence in the Czech Republic, etc.), but the compliance is not enforceable.
Czech Republic - Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy No
b. only specific forms of surrogacy (e.g. commercial) (please specify) Yes. According to Czech legislation, the human body and its parts must not be a source of financial gain.
Czech Republic - Services
9. Is it lawful to advertise surrogacy services? Yes. No specific prohibition, these procedures are offered, for example, on the sites of the MAR centers. However, the Czech Transplantation Act says: Advertising and advertising for the purpose of demand or offer of organs are prohibited
10. Is it lawful to remunerate a facilitator/surrogacy agency No. No agency officially exists yet. But at least one private centre seeks out prospective surrogate mothers and offers mediation to those interested in the procedure.
Switzerland - Specific criteria
6. Is access to surrogacy subject to specific criteria? NA
a. medical criteria (e.g. infertility of the intended parent(s))
b. other criteria (please specify)
Switzerland - Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Switzerland - Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No
b. intended parent(s) No
c. gamete donor No
d. facilitator Yes
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) No
Germany - Current debate and specific situations
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
Any activities of the Council of Europe regarding surrogacy issues should be coordinated with the Hague Conference on Private International Law. Matters of international private and procedural law in this area should be reserved for the Hague Conference in order to avoid duplication of work.
Ireland - Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: It is proposed that the reimbursement of reasonable, receptable expenses will be permitted which might include: any pre-natal or post-natal medical expenses associated with the pregnancy or birth; expenses associated with the surrogate mother receiving counselling, independent legal advice; maternity clothing, paid housework or childcare undertaken by persons other than the surrogate mother; the expense of reimbursing the surrogate mother for any loss of income but only for a) a period of not more than 6 months during the which the birth happened or was expected to happen; b) any other period during the pregnancy or thereafter, not exceeding 12 months in total, when the surrogate mother was unable to work on medical grounds related to the pregnancy or birth.
a. refund of medical expenses
b. refund of other expenses
c. compensation for loss of income
d. other compensation including non-pecuniary
e. remuneration or comparable advantage
- refund of medical expenses
- refund of other expenses
- compensation for loss of income
- other compensation including non-pecuniary
- remuneration or comparable advantage
Ireland - Specific criteria
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s))
It is proposed that access to surrogacy will be made available on the basis of medical need.
b. other criteria (please specify)
The proposed legislation sets out additional criteria which must be met by the intending parents in order for the surrogacy to be approved by the Regulatory Authority, the establishment of which the draft legislation also provides for. Under the draft legislation, for example, each intending parent must be 21 years of age or over and at least one intending parent in each surrogacy must be habitually resident in Ireland.
Germany - Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No
b. intended parent(s) No
c. gamete donor No
d. facilitator Yes
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? The Federal Government is not aware of any of the unlawful practices referred to in a. to e. in Germany. However, since oocyte transfer is prohibited too, German artificial reproduction clinics cannot engage in any form of surrogacy.
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) No
Germany - Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive:
a. refund of medical expenses N/A
b. refund of other expenses N/A
c. compensation for loss of income N/A
d. other compensation including non-pecuniary N/A
e. remuneration or comparable advantage N/A
- refund of medical expenses
- refund of other expenses
- compensation for loss of income
- other compensation including non-pecuniary
- remuneration or comparable advantage
Germany - Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency NA
Ireland - Legal regulation
1. Is surrogacy regulated by a specific law in your country? No. The Health (Assisted Human Reproduction) Bill 2022 (the AHR Bill) was introduced to, and passed Second Stage in, the Dáil (lower House of the Irish Parliament) in March 2022. The focus of this Bill is on the regulation, for the first time in this country, of a wide range of assisted human reproduction (AHR) practices undertaken within the jurisdiction. The Bill as initiated provided for domestic altruistic surrogacy but did not contain provisions to regulate surrogacy arrangements undertaken in other jurisdictions. In March 2024 the Bill passed Committee Stage (Third Stage) in the Dáil. The AHR Bill, as amended at Committee Stage, includes new provisions in respect of the regulation of international surrogacy agreements and the recognition of certain past surrogacy arrangements.
2. Is surrogacy regulated in another way? (please specify) No, but in February 2012, the Department of Justice and Equality issued a guidance document to parents seeking travel documents for children born outside the State as a result of surrogacy arrangements entitled: Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered Into Outside the State. A pre-condition of granting emergency travel documents is that the genetic father (intending father) makes an application for a declaration of parentage and guardianship for the child within 10 working days of the arrival of the child into the State.
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
MR and Anor – v- An tArd Chlaraitheoir & Ors [2014]
This case concerned an arrangement whereby a woman agreed to act as a surrogate for her sister and brother-in-law (the commissioning couple). The commissioning couple provided the genetic material (egg and sperm), which ultimately resulted in the birth of twins. The commissioning couple sought to have the birth register altered so that the commissioning couple were both registered as the legal parents. The Registrar refused to do so, on the principle that under Irish law the woman who has given birth to a child is always regarded as the legal mother. That refusal was challenged in the High Court.
In his judgment of 5th March 2013, Judge Abbott found in favour of the commissioning couple. He held that the genetic mother, and not the birth mother, was the mother, and that the person with the genetic/blood link was entitled to be registered as the parent on the birth certificate.
In February 2014, the State appealed Judge Abbott’s decision on the grounds that: it could create uncertainty regarding the parentage and parental rights of children born as a result of egg donation; demean the role of birth mother; lead to an opinion that commercial surrogacy is not unlawful; and result in the Registrar requiring genetic proof of maternity for every birth.
In November 2014 the Supreme Court overturned the High Court decision on the basis that the case had raised important, complex and social issues which are best addressed by the Oireachtas rather than the judiciary.
High Court Ruling:
Supreme Court Ruling: http://www.courts.ie/Judgments.nsf/0/E238E39A6E756AB480257D890054DCB6
4. Is there a legal definition of the term “surrogacy”? (please specify) No.
A legal definition of the term in the AHR Bill, as initiated, is as follows:
“‘surrogacy’ means an agreement, between a woman and the intending parents (or, in the case of a single intending parent, that intending parent) under which the woman agrees to attempt to become pregnant, by the use of an egg other than her own, and, if successful, to transfer the parentage of any child born as a result of the pregnancy to the intending parents (or, in the case of a single intending parent, that intending parent)”.
However, this definition is subject to amendment and may not be the version in the finalised AHR legislation by the time it has passed through all stages in both Houses of the Oireachtas and has been enacted.
Switzerland - Legal regulation
1. Is surrogacy regulated by a specific law in your country? Surrogacy is prohibited in Switzerland (see Art. 119 para 2 lit d Swiss Constitution; Art. 4 of the Swiss Reproductive Medicine Act, RMA)
2. Is surrogacy regulated in another way? (please specify) No.
The case law of the Swiss Federal Supreme Court governs the conditions for recognition of parent-child relationships resulting from surrogate motherhood.
Article 119.2 of the Swiss Constitution also contains relevant information: RS 101 - Federal Constitution of the Swiss Confederation... | Fedlex (admin.ch)
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. A number of cases concern the legal status and adoption of children born through surrogacy abroad (in the United States, for example).
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. Article 2, paragraph k, of the Federal Law on Medically Assisted Procreation reads as follows: "surrogate mother: a woman who agrees to carry a child conceived by means of a medically assisted procreation method and to hand it over permanently to a third party after the birth;".
Denmark - Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes, mother is the woman who gave birth to the child
b. oocyte donor No
c. sperm donor Yes, but if the mother is married, her husband will be considered the father by pater-est. A sperm donor (and intended father) may be able to recognize the paternity instead of the husband.
d. intended mother No
e. intended father No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)?
Not directly. See also answer to question number five.
If the intended father is also the genetic father (e.g. sperm donor), he will be recognized as legal father of the child unless the surrogate mother is married and there has not been a paternity case, where the husband of the surrogate mother declares that he is not the father of the child.
A spouse or cohabiting partner may apply for a stepchild adoption. However according to Danish regulation, the spouse or partner must have been living with the child for 2½ years before a stepchild adoption may be granted and an adoption decree shall not be issued if any of the parties required to consent to the adoption are to give or receive any kind whatsoever of payments or consideration, including compensation for loss of earnings.
If the intended father is not recognized as a legal father the only option to become legal parent of the child is an adoption, which must be in accordance with the 1993-Hague Convention on Intercountry Adoption, and therefore is difficult.
15. Is the existence of a genetic link required for establishing paternity/maternity? No.
In Denmark maternity is established by mater est, which means that the woman who gives birth to the child is the legal mother.
Paternity can be established in three different ways:
- By presumption (pater est (the husband to a mother is presumed to be the father of a child) or a man and the mother jointly sign a Care and Responsibility Declaration, paternity will be recognized)
- By declaration or judgment when the man is the genetic father.
- When a man has consented to his spouse or partner undergoing assisted fertilization, paternity can be established. This also applies to co-maternity, when a woman has consented to her spouse or partner undergoing assisted fertilization.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor Yes and no
d. intended mother No
e. intended father Yes and no. If the intended father is also the genetic father, it is possible to recognize the paternity (cf. answer to question 13).
17. Are foreign birth certificates in surrogacy cases registered in your country No. According to Article 30 of the Children Act, a woman bearing a child who is the result of medically assisted procreation shall be considered the mother of the child (mater est). In Denmark a foreign birth certificate that indicates another person than the birth mother, as parent of the child will not be recognized. If the birth certificate also mentions a father, that paternity will be recognized if the man is also the genetic father of the child.
Denmark - Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No
b. intended parent(s)
c. gamete donor
d. facilitator
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) No
Denmark - Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy Yes
b. only specific forms of surrogacy (e.g. commercial) (please specify) No.
According to § 13 in the Danish Act on Assisted Reproduction, assisted reproduction cannot be established in relation to an agreement between the woman, who seeks to be pregnant, and someone else, who wishes for her to give birth to a child for them (surrogacy).
Germany - Legal regulation
1. Is surrogacy regulated by a specific law in your country? Yes.
Pursuant to section 1 subsection (1), no. 7, of the Act on the Protection of Embryos [Embryonenschutzgesetz, ESchG], a person who undertakes to perform an artificial insemination on a woman who is prepared to give up her child permanently after birth to third parties (surrogate mother) or to transfer a human embryo to her is liable to imprisonment of up to three years or a fine. In such case neither the surrogate mother nor the person who wishes to permanently take care of the child is liable to punishment.
Pursuant to section 13c of the Adoption Placement Act [Adoptionsvermittlungsgesetz, AdVermiG], the procurement of surrogate mothers is prohibited by law in Germany.
2. Is surrogacy regulated in another way? (please specify) NA
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes
Domestic surrogacy has not been subject of (civil law) jurisprudence due to strict prohibitions.
So far the courts have delivered only a few judgments dealing with the recognition of foreign judicial decisions issued following an international surrogacy arrangement.
In its leading decision of 10 December 2014, the Federal Court of Justice recognised a judgment from California establishing paternity of two German male nationals on the basis of a surrogacy agreement. The surrogate mother was not married, an anonymous egg donor was used and the child was, therefore, genetically related to only one of the intended fathers.
The Federal Court of Justice held that the recognition of a foreign judgment establishing a legal parent-child relationship between the child and the intended parents does not lead to a result that is obviously incompatible with significant principles of German law (ordre public) if (at least) one of the intended parents is genetically related to the child and the surrogacy mother is not. Whether the intended parents are of the same sex and live in a registered life partnership (or are married) or whether they are of a different sex and are married is not decisive. What is crucial for the possibility of recognition, according to the Federal Court of Justice, is whether or not the child was transferred by the surrogate mother into the care of the intended parents voluntarily – although this was not problematic in this particular case.
According to the Federal Court of Justice, binding the child to the legal maternity of the surrogate mother, as would follow from Section 1591 of the Civil Code (Bürgerliches Gesetzbuch – BGB), is not in the child’s best interest, because the surrogate mother does not want to take care of the child and because the foreign state will not acknowledge the legal maternity of the surrogate mother due to the foreign judgment.
The jurisprudence established by the Federal Court of Justice’s ruling has already been referred to by the Higher Regional Court of Düsseldorf in its decision of 7 April 2015 and several other German courts thereafter. The Federal Court of Justice itself subsequently further reaffirmed and specified its case law in two decisions of 5 September 2018 and 12 January 2022.
For instance, it held that the voluntary nature of the surrogate mother's cooperation is not called into question by the fact that the surrogate mother receives money in return or that there is a social disparity between her and the intended or appointed parents.
Recent first instance court decisions point to an even broader recognition of foreign surrogacy judgments, as the genetic link between one of the intended parents and the child has been declared of lesser relevance than the free and informed decision of the surrogate mother to accept the transfer of parenthood to the intended parents as well as the child’s best interests’ assessment.
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. See answer to question 1.
Italy - Current debate and specific situations
18. Is there:
a. any public discussion about the topic There is an important public debate on this topic, with a public opinion predominantly opposed to surrogacy
b. planning of new regulation at national level The bill approved by the Chamber of Deputies and forwarded to the Senate (No. 824), which incorporates proposals presented in the previous legislature (Nos. 2599 and 306, Chamber of Deputies), extends the application of Italian criminal law to the crime of surrogacy committed by Italian citizens abroad.
19. Please specify any additional relevant aspects which were not mentioned.
Italy brought the Paradiso and Campanelli v. Italy case in front of the ECHR (judgment on 27 January 2015). A case of a child born in Russia following a surrogacy arrangement entered into by a couple who had no biological relationship with the child, contrary to allegations made by the applicants. The Italian State declared the child legally available for adoption and placed him under guardianship. The European Court of Human Rights condemned Italy. However, the Italian government appealed this decision and requested that the case be referred to the Grand Chamber of the ECHR. Grand Chamber hearing with the Italian government was held on 9 December 2015. With the judgment on 24 January 2017, the ECHR established: “ The Court accepts that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in the present case. It follows that there has been no violation of Article 8 of the Convention”. The ECHR recognized that the measures in question were deemed proportionate to the protection of the overriding interest of the child and essential to avoid recognizing as legitimate a situation created in violation of rules important to the national system.