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Surrogate motherhood – The legal situation in Germany

The present legal situation of surrogate motherhood in Germany is very restrictive. This is to such an extent, that it would barely be possible to conclude an agreement and go through with it within German jurisdiction.

Before going into details the development leading to this disastrous situation is to be summarized. In the eighties a number of people entered into surrogate motherhood agreements in Germany.

This was certainly among other things due to cases from the US, which received extensive news coverage. Even a US attorney established a brokering-agency in Frankfurt/Main in 1987. This was prohibited by a German administrative court based on the grounds that such a business contradicts with public policy.

Unfortunately, after a reasonable start, the legal situation and the general public image of surrogacy in Germany deterioated. Only three cases came to court (in 1985/86). They mainly dealt with disputes over payments of money in connection with surrogacy contracts. The courts unanimously took a strong stand against surrogacy and found the contracts to be void( contradiction with public policy).

This was done without giving sufficient evidence mainly based on speculation regarding the best interests of the child. Somehow a general view came into existence that surrogacy is to be considered a bad thing and should be banned. A detailed analysis of potential problems was never conducted.

A government report from 1985 (the so-called Benda-Report) covered surrogacy only superficially (four pages).Finally legislation was enacted, which governs surrogate motherhood up to this day.

Most prominently Art.7 I Nr.7 of the German Embryonenschutzgesetz (law for the protection of embryos, which came into force in 1990 and also prohibits egg-donation in Art. 1 I Nr. 1 and is in general very restrictive regarding reproductive medicine) provides that no medical practioner should perform artificial insemination or embryo donation on a woman, who is willing to hand the child over to commissioning parents upon birth in accordance with a surrogacy agreement. Non-compliance is a criminal offence, with the cosequence of a fine or imprisonment.

Moreover provision concerning the brokering of surrogacy contracts is made for in the German Adoptionsvermittlungsgesetz (law concerning the brokering of adoptions enacted in 1989).

Art.13 b states that no person should bring together a surrogate with prospective commissioning parents or vice versa. Art.13 d prohibits commercials or announcements which seek to bring together such persons. Non–compliance is again a criminal offence.

This legislation is not based on reason and detailed analysis but on panic and misconception. As a consequence, German couples for whom surrogacy may be a last resort, have to seek assistance in other countries while feeling guilty for something which is an everyday-event in many civilized countries around the world.

Hopefully the ongoing European integration will bring about a positive change.This hope is based on the fact that the legal situation in countries like Belgium, the Netherlands and Great Britain is much more liberal and open-minded.

There is also a new discussion going on in Germany speaking out in favour of egg donation, which, if permitted, will open the door for surrogacy.But it can safely be predicted that the law governing surrogacy is not to be changed within the next two years.

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