29 Dec 2014 How Far Does German Foreign Surrogacy Decision Go?

Several questions persist in the wake of last week’s German Supreme Court ruling ordering authorities to recognize the parentage of a gay couple who had a child via surrogacy in California (see our posts here and here). One key question is whether the judgment extends beyond the specific circumstances of same-sex intended parents to also apply to heterosexual, legally married couples. Another is whether the surrogate, even a foreign surrogate, must be unmarried.

Based on additional analysis from German attorneys and judges who are colleagues of mine:

• The decision distinguishes between a foreign adjudication (U.S. in this case), which contains the statement of a legal relationship, and a mere registration of relationship. In other words, as we reported earlier, “The Federal Court held that the decision by the California court commands comity, and German courts may not, as a rule, second-guess a foreign court's decision.”
• Even if the foreign adjudication violates the “ordre public” (in private international law, the ordre public is the body of principles that underpin the operation of legal systems in each state/country), and in this case, surrogacy is against the “ordre public” in Germany, the Court orders that the rights defined under European Convention for the Protection of Human Rights are also to be taken in consideration. (Read more about this in our post.)
• The fact that the foreign adjudication allocates the legal parentage of the child to the intended parents is not a violation of the ordre public, “at least in the case that one of the intended parents is genetically related to the child, and the surrogate is not.

In the analysis of my German colleagues, the German high court’s decision must also apply to heterosexual married couples; not to do so would be discriminatory. Likewise, it should not make a difference whether the couple would use the eggs of the wife or donor eggs.

Here are some possible results of the decision:

• It probably will still be necessary for the intended father to declare acknowledgement of fatherhood in order to be legally recognized as the parent. However, rather than requiring the foreign surrogate to travel to Germany for this purpose, the surrogate and intended parent should be able to make the declaration before the German Consulate General in the United States—the process followed by the couple in the case on which the Supreme Court ruled.
• Likewise, the surrogate will not be required to travel to Germany following the birth of the child because the ruling says German register offices must now accept the U.S. Court’s authority to determine that the intended parents are the legal parents of the child; therefore a second parent adoption should not be necessary.
• Should the surrogate refuse to give custody of the child to the intended parents after birth, i.e., she changes her mind, it is not clear whether German courts would recognize a decision by U.S. courts to enforce the surrogacy agreement. Last week’s ruling is specific to the situation that the surrogate voluntarily surrenders the child to the intended parents voluntarily and does not attempt to establish parental rights.
• The Court’s position in a situation in which neither intended parent is genetically related to the child is not clear and might not favor the intended parents.
• It is likely that in a case in which the surrogate were legally married, the genetic father (intended father) would not be recognized as the legal parent; rather, under German law, the surrogate’s husband would be considered the legal father.

With so many lingering questions, it will likely take quite some time before a legal path becomes clear for German intended parents pursuing surrogacy. Since surrogacy of any kind is illegal in Germany, many intended parents will, no doubt, continue to pursue surrogacy in other countries. The intense attention this ruling has garnered in the media and in legal and assisted reproductive technology forums reflects a strong public interest in a viable solution for German intended parents. Perhaps the best result of this recent decision is that it breaches, however narrowly, the societal and legal barriers that prevent a large portion of the German population from having the families they desire.