Germany’s health care system is known as one of the best in the whole world. Many people from abroad come to Germany for treatment or surgery, seeking for the highest-qualified specialists in a certain area. Unfortunately, such kind of infertility treatment as surrogacy and IVF with egg-donation is still unavailable in this country, most of all because of ethical issues and strict position of the government on this issue.
Embryo as a subject of Law
It’s interesting to know, that according to German law embryos are protected under the three fundamental rights of human beings: protection of human dignity, free development of personality and right to life. The Embryo protection Act, dated 13.12.1990, indicates this in its main provisions.
For example, it is punishable up to three years of imprisonment for usage of donor eggs, for transferring more than three embryos at once to the future mother’s uterus, for fertilization of more woman’s eggs than can be transmitted within a cycle and, of course, surrogacy is banned. Moreover, under the par. 3, 3a of this Act, whoever undertakes to make a PGD or a sex-selection of the future baby for any other reasons than medical will be punished with imprisonment of up to one year or a fine.
Egg and sperm donation in Germany
It is curious how strict is the legal system to egg donation and surrogacy in such a developed country as Germany. Infertile women are totally out of the protection of the government there, as they can use neither egg donor nor a surrogate mother. On the contrary, there is no any explanation why sperm donation is allowed. According to the new sperm Donation law in Germany, from the 1 of July 2018 all information about the sperm donor will be included in the specific register, where upon attaining the age of 16 years old any child born via ART technology can obtain the information about his genetic father (sperm donor). However, it doesn’t give any parental rights to the sperm donor, it just gives the person born via ART right to know its origin.
Some couples face the problem, that IVF even with sperm donation doesn’t help them to achieve the pregnancy. This forces them to choose other options for their treatment like egg-donation and surrogacy abroad. If you are ready to start your surrogacy journey abroad, draw your attention to the following items.
Above all, even if your surrogacy program will be performed overseas, take into consideration, that in the end you will come back to Germany with your baby and it can cause some legal difficulties with the Embassy process. That’s why we suggest you to pay attention to some details from the very beginning of the process.
Two mothers, one baby
First of all, when choosing your surrogate mother pay attention to her marital status. Why is it necessary?
Even if you get the certificate of birth of the baby in a foreign country where you are written as legal parents of the baby (legal mother and legal father), German Embassy will not recognise this certificate of birth and you will need to establish your paternity rights one more time in the Embassy according to the German law.
Under the German law, the mother of a baby is always a woman who delivers the baby, regardless of the baby’s genetic link to his biological (genetic, intended) mother, and the father of the baby is always a legal husband of a woman, who gave birth.
In that regard, we strongly recommend you to find a single surrogate mother for your surrogacy case abroad.
In the German Embassy, the genetic mother will have no rights to the baby at all and, consequently, cannot transfer her nationality to the baby. If your surrogate mother is single, it will be possible to acknowledge paternity of a biological (genetic, intended) father in the Embassy according to the specific procedure.
Otherwise, if you already have a surrogate mother, who is married, you will need to get the nationality and the passport of a baby in the country, where the baby is born (for example, it is possible in Georgia), take it to Germany and after some time of living there, the child will have a possibility to get German citizenship according to its domicile.
Who is the father?
As we already mentioned before, the biological (genetic, intended) father needs to acknowledge his paternity in front of the German Consul. There is a specific statement that can be done in the Embassy in two different ways: before or after the baby’s birth.
In the first case, the Intended Father who has the genetic link to the baby has to legally recognize the child in the Consulate, while the Surrogate Mother is pregnant, with the consent of the Surrogate. This recognition needs to be publicly certified (usually via Information Sheets on the Websites of the German Embassy/Consulate). Once the child is legally recognized by an Intended Father who is a German citizen, the (unborn) child automatically acquires German citizenship.
In the second case, Intended Father is doing the same, but after the birth and also with the personal presence of the Surrogate Mother in the German Consulate (for making her consent). In both cases it must be clear that the Surrogate Mother decided voluntarily to carry out the child and to give custody and all parental rights to the Intended Father. No hearing is necessary to prove that, a declaration suffices.
The Intended Parents should be ready to give the following list of documentation (with translation and apostilisation if necessary) to the Embassy for acknowledgement of the paternity rights:
- Passport or identity card of the Intended father
- Passport or identity card of the Surrogate mother
- Proof of legal presence and address in the country where surrogacy was performed;
- birth certificate of the child (translated and apostilled)
- birth certificate from the hospital
- For prenatal paternity recognition: evidence of pregnancy, the calculated date of birth and sex [if determined] should be apparent) etc.
After the paternity acknowledgement and establishment of the baby’s nationality, Intended Parents will need to get the passport of a baby to travel home through the border.
Before it was a big problem to get the baby’s passport for German couples, but situation became a little bit better after the Germany’s Supreme Court ruled that the government must recognize the children born via surrogacy in other countries as the legal offspring of German intended parents.
In its ruling the high court stated that German authorities must respect the decisions of foreign authorities in regard to the parental rights of German intended parents even though surrogacy is not legal in Germany.
We want to encourage our future parents, that in case that they choose us as their surrogacy provider in Georgia, we will help them with any legal difficulties they may face after the baby’s birth. It is worth pointing out that even in the event of a change in the German law that makes obtaining the German citizenship of the baby more difficult, it will be possible to get the Georgian citizenship and passport for a baby born via surrogacy. The procedure is straightforward and takes not more than three weeks.
We wish all German families to fulfill their dreams!
Don’t hesitate to contact us if any questions occur.
Author: Sukhanova Anna, legal adviser of Pons Medical Group