Surrogate mother

from Wikipedia, the free encyclopedia

Legal situation for surrogacy worldwide:
  • Both altruistic and commercial surrogacy allowed
  • No legal regulations
  • Only altruistic surrogacy legal
  • Allowed between relatives up to second degree
  • Forbidden by law
  • unregulated / legal situation uncertain
  • A surrogate mother (seldom also referred to as a surrogate mother ) is a woman who makes her uterus available for a foreign fertilized egg cell for the duration of a pregnancy, that is, she “ lends ” it in order to have a child instead of another person, the genetic mother.

    In fact, in many cases the so-called surrogate mother only works with the so-called ordering parents on the basis of a contract , in return for an often not inconsiderable amount of money. Therefore, the term surrogate mother is criticized for giving a misleading impression about an ethically at least controversial procedure. In fact, in many cases one would have to speak of tenant maternity .


    In terms of reproductive medicine, there are the following options:

    1. The embryo with the genetic potential of the (ordering) parents is implanted in the uterus of a (other) woman, the “pregnant mother”, and leads to a pregnancy there. The woman thus carries a foreign, not endogenous embryo. The commissioned or carrying mother alone takes on a “childbearing function” and is not hereditary related to the embryo or the child. The legal situation depends on the laws of the respective state.
    2. A woman's egg cell is inseminated with the sperm of a man known or unknown. She is thus the biological, genetic and fertile mother. If she passes her child on to the biological genetic father, his wife takes on the role of a social mother.


    In Germany, the Embryo Protection Act (ESchG), which came into force in January 1991, prohibits any medical service in the case of surrogate motherhood; the actions of the surrogate mother or the person placing the order are not punished. These medical acts are criminal offenses and are punishable by imprisonment of up to three years or a fine , Section 1 (1) ESchG. The placement of surrogate mothers is prohibited by law in Germany under the Adoption Placement Act.

    However , the legal situation differs within the European Union - in this context the Max Planck Institute for Foreign and International Criminal Law has published an overview table.

    From a legal point of view, the question arises of who is considered the mother and father of the child if surrogate motherhood occurs despite existing prohibitions.

    In Germany, motherhood is regulated by Section 1591 of the German Civil Code (BGB ) , which was added in 1997 : the mother of a child is the woman who gave birth to it . The legal mother is therefore the surrogate mother and not a later “care mother” who may have given the order. This is true even if the “care mother” is the genetic mother. It cannot be contested, nor can the genetic mother be effectively made mother by contract. Even if the “custodial mother” is entered as the “mother” in a foreign birth certificate, this does not justify her motherhood under German law. The “care mother” is therefore not legally related to the child.

    According to German law, a “custodial father” can neither effectively establish his paternity from a contract on surrogacy nor from a foreign birth certificate in which he was entered as the “father”. However, he can establish the legal descent of the child from himself. For this purpose, he must formally recognize paternity with the surrogate mother's consent (Section 1594 BGB). Such a recognition can only be made effectively if the paternity of another man does not exist (§ 1594 Abs. 2 BGB). If the surrogate mother is married, then according to German law her husband is the father of the child (§ 1592 Abs. 1 BGB), at least as long as this paternity has not been successfully challenged.

    According to German law, the child of a surrogate mother who is married to a man is initially the child of her and her husband. If the surrogate mother and her husband are not German citizens, the child does not legally have a German parent. Therefore the child does not have German citizenship. German passport authorities are therefore not allowed to issue a German passport to the child. An exit of the child to Germany, e.g. B. from Ukraine or India, is not possible without appropriate German identification papers.

    According to a fundamental decision of the Federal Court of Justice of December 2014, something else can arise if a foreign court decision is available according to which the intended parents have legal parenting status, but not the surrogate mother. In the ruled case, a Californian court recognized a German gay couple as parents. The Federal Court of Justice ruled that this US court ruling is recognized and that the German gay couple therefore also have full legal parenting status in Germany. The Federal Court of Justice has limited its decision to the case that a desired father is the genetic producer, but the egg cell does not come from the surrogate mother, and the latter does not even want to assume the mother position. The diplomatic missions check each individual case in accordance with the legal situation and - if necessary - with the involvement of the highest court rulings. In cases of surrogacy, the BGH decision of December 10, 2014, XI I ZB 463/13, and the decision of April 20, 2016, XII ZB 15/15 in cases of co-motherhood, must be taken into account. The diplomatic missions abroad receive work and interpretation instructions via circulars from the Federal Foreign Office. These circulars are updated at regular intervals and as required. This was done for the circular to check parentage after the publication of the BGH decision on surrogacy and is also done with regard to the decision on co-motherhood.

    The legally defined designation surrogate mother ( a woman who is willing to leave her child to third parties after the birth ) as legally defined in Section 1 (1) No. 7 ESchG is not common in everyday German.

    In Germany, the political party FDP is calling for non-commercial surrogacy to be permitted in its 2017 party program. This is also required by the LSVD and LiSL , among others .

    Other countries

    Most states around the world prohibit surrogacy, especially in its commercial, non-altruistic form. In the European Union , it is banned in 15 of the 28 EU member states (as of 2014).

    Legal surrogacy (selection)

    In a few countries such as Russia and Thailand as well as individual states of the United States , surrogate motherhood is possible in both altruistic and commercial forms and is used by homosexual couples, among others. Some states - such as Australia , Canada and the Netherlands - only allow the altruistic (ie non-commercial) form of surrogacy.


    Since mid-2011, surrogacy in Belgium has also been possible for homosexual couples. Although the criteria for different and same-sex couples are the same, it is examined very carefully to what extent the couples who want to take advantage of surrogacy are suitable. The strict regulations mean that almost every second couple (regardless of sexual orientation) is rejected. In addition, the couples have to find a suitable surrogate mother themselves.


    Denmark has unusually strict guidelines on altruistic surrogacy, which, as opposed to commercial, is allowed. An adoption by the commissioning mother can only take place around two and a half years after the birth, although the guardianship can exist before that. However, if the surrogate mother has received financial compensation that exceeds the costs incurred and improves the living standard of the pregnant mother, adoption is no longer legally possible.

    It is not allowed to publicly search for a potential surrogate mother or to help people find a wife for her. Medical staff are also prohibited from helping the surrogate mother to become pregnant, so fertilization must take place abroad. Contracts that regulate surrogacy are not legally binding, which makes the process legally unsafe for the people involved. Because of the restrictions, Danish couples therefore often choose to use the surrogacy service in other countries where the commercial form is also allowed.


    Surrogacy and sperm or egg donation have been legal in Georgia since 1997 . According to this law, the donor or surrogate mother has no parental rights. According to Georgian legislation, only the commissioning couple is registered as parents in the birth certificate. This legal stipulation also takes place if the sperm and egg cells do not come from the commissioning couple, but from donors from other people. The birth certificate is issued within one day after the child is born. The surrogate mother is not entered in the birth certificate. Thus, the birth certificate of the child born through surrogacy is no different from the certificates of other children. The surrogate mother's consent is not required for the couple to be entered in the child's birth certificate. The following documents are required for the registration of the couple as parents of the child: the surrogate motherhood contract concluded by the couple, a certificate issued by the In Vitro Fertilization Clinic on the transfer of the embryo into the surrogate mother's uterus and a certificate issued by the maternity hospital about childbirth. The procedure for issuing the birth certificate is simple and there is no need to hire a lawyer. After receiving the birth certificate, the parents have the right to take the child with them to their country of origin at any time. However, this no longer applies to Germany.

    If the sperm comes from the commissioning father but the egg cells do not come from the commissioning mother, the registered marriage of the couple is required for the entry of the woman in the child's birth certificate. The woman can only be entered as the mother in the child's birth certificate on the basis of the couple's marriage certificate.


    Surrogacy is allowed in Greece, subject to similar rules as in the UK . There are fertility clinics there that also carry out surrogate motherhoods for couples from countries where this reproductive technique is not allowed. However, the legal regulations in Greece are often not or only insufficiently observed. This leads to increasing criticism and the partial demand to ban surrogacy again.


    Surrogacy in India should be banned in commercial form. In future, only native married couples should be able to have children through surrogate motherhood in an old-fashioned way.


    In Israel, surrogate motherhoods are allowed for heterosexual couples. At the end of February 2020, Israel's highest court ruled that they should also be allowed for homosexual couples. A corresponding change in the law must be passed within one year. LGBT organizations in Israel describe this as a major historic step.


    In Japan , the Japanese Society of Obstetrics and Gynecology ( 日本 産科 婦人 科学 会 , Nihon sanka fujinka gakkai , The Japan Society of Obstetrics and Gynecology ) banned in vitro fertilization and embryo transfer in October 1983 . In 2001 this resolution was collectively confirmed at a general assembly. However, the company has no way of enforcing this resolution. According to Hiro Netsuya ( 根 津 八 紘 ) there were 15 attempts at surrogate mother pregnancies between 1999 and 2008, 8 of which were successful, 4 of the surrogate mothers were between the ages of 55 and 61, 5 birth mothers and an undisclosed number of surrogate mothers were sisters . Therefore, in April 2008, the Japanese Science Council came out in favor of a principle prohibition of surrogate mother pregnancies on a legal basis.


    In Canada, the Assisted Human Reproduction Act has been clarifying the legal situation since 2004: surrogacy is allowed as long as it is unselfish. This means that a couple who want to take advantage of surrogacy may not offer the surrogate money to have the child born. However, costs may be borne by the couple to reimburse the surrogate mother for certain expenses if the state allows this type of payment.

    However, the province of Québec does not allow the commercial or non-commercial form of surrogacy.

    New Zealand

    In New Zealand, surrogacy laws are governed by the Human Assisted Reproductive Technology Act 2004 . This 2004 ordinance does not in itself prohibit surrogacy . According to the law, the altruistic variant of surrogacy is legal; Targeted commercial surrogacy agreements are prohibited.


    A change in the law in 1994 legalized altruistic surrogacy in the Netherlands, although the commercial variant remained banned.

    As in Belgium, although non-commercial surrogate motherhoods are legal, the rules in this area are extremely strict and make it difficult to access or use them.


    Portugal legalized surrogacy for heterosexual couples in 2017.


    IVF surrogacy, including commercial ones, is legal in Russia, and it is available to practically all interested adults. There must be a specific medical indication for surrogacy: deficiency of the uterus, deformity of the uterine cavity or cervix, synechia of the uterine cavity, somatic diseases as a contraindication to pregnancy, repeated failed IVF attempts if the high quality embryos implanted did not result in pregnancy.

    The first Russian surrogacy program was successfully implemented in 1995 at the Institute of Obstetrics and Gynecology in St. Petersburg. Public opinion in the country is pro-fraudulent; there are often cases that e.g. B. A famous singer or a prominent businesswoman openly uses surrogacy and receives very positive coverage.

    Some Russian women, e.g. B. Ekaterina Zacharowa , Natalija Klimowa , Lamara Keleschewa , have become grandmothers through the post-mortem surrogacy programs ; that is, their grandchildren were conceived in vitro after the death of their sons.

    Registration of children born through surrogacy is regulated by the Family Code of the Russian Federation (Articles 51–52) and the Federal Law on Civil Status Acts (Article 16). The consent of the surrogate mother is required for this. Except for consent, neither adoption nor court judgment is required. The surrogate mother's name is never mentioned on the child's birth certificate.

    In the law there is no requirement that the child should be genetically linked to at least one intended parent.

    The children who descend from unmarried heterosexual couples or single parents through surrogacy via IVF are registered in accordance with Analogie de Jus (Art. 5 of the Family Code). A court ruling may be required for this. On August 5, 2009, the St. Petersburg court finally resolved the dispute over the question of whether a single woman may commission surrogacy and instructed the registry office to appoint the 35-year-old single dream mother Natalja Gorskaya as the mother of her son born through surrogacy to be entered.

    On August 4, 2010, the Moscow court ruled that a single man who had undertaken a surrogacy program using donated eggs could be registered as the only parent of his son; thus he has become the first man in Russia to enforce his right to fatherhood through legal process. The name of the surrogate mother was not entered on the birth certificate; the father is considered the only parent. After that, many identical judgments were passed by Russian courts in relation to single men who became fathers through surrogacy. This means that all single parents, regardless of their gender or sexual orientation, can fulfill their desire to have children in Russia.

    Liberal legislation makes Russia an attractive destination for reproductive tourists, where many repro-medicine techniques are allowed. Intended parents go to Russia for egg donation due to advanced age or marital status (single women and men) or when surrogacy is an option. Foreigners have the same rights to assisted reproduction as Russian citizens. Within three days of the birth, the intended parents acquire the Russian birth certificate with the two names on it. Genetic relationship with the child (in the case of donation) makes no difference.

    In February 2014, the Duma prepared a bill to ban surrogacy for single men and homosexual couples. The law was passed and therefore surrogacy is only open to heterosexual couples and women who cannot have children.

    In Saint-Petersburg the first center in Russia, where a surrogacy program was implemented was.


    In Thailand, foreigners have been banned from commissioning local surrogate mothers commercially since 2015. Australian parents had previously left one of the two twins behind because he had Downsydrom. In another case, a Japanese had at least ten children born and made headlines in the local media.


    Surrogacy and surrogacy in combination with egg / sperm donation have been legal in Ukraine since 2002 . In 2013, Decree of the Ukrainian Ministry of Health No. 771 expired with the entry into force of a new law. Now, surrogacy and egg donation in Ukraine are regulated by Decree of the Ukrainian Ministry of Health No. 787.

    United Kingdom

    In the UK , surrogate motherhood has been allowed by the Human Fertilization and Embryology Act since 2008. However, commercial surrogates have been banned since 1985. One organization that helps couples is Childlessness overcome through surrogacy (COTS) in Edinburgh, which is also present on the Internet.

    United States

    In the United States , surrogacy is allowed in 18 of 50 states as of March 2014. California is known as a surrogacy-friendly state: in 2012, a law was passed that gave same-sex parents equal parental rights through surrogacy.

    The regulation varies greatly from state to state, as can be seen here: The majority of US states do not regulate surrogacy. Therefore, the pre-birth order or post-birth order is a decision of the court. Mostly they judge in favor of the intended parents. There are states where surrogacy is possible with caution: Arizona , Idaho , Indiana , Iowa , Montana , Nebraska , Tennessee, and Wyoming . In these states there is uncertainty about how a judgment on the recognition of paternity will turn out. For example, there may be too few surrogacy cases to know whether the courts will judge in favor of the intended parents. Sometimes these are states where the court ruling is heavily conditioned by the genetic relationship. For example, in Indiana or Nebraska, contracts are declared invalid.

    In fact, for Michigan , New York, and Washington , participating in commercial surrogacy is a criminal offense.

    Surrogacy illegal (selection)

    Any form of surrogacy is prohibited in the following 12 of the 27 EU member states: Bulgaria, Germany, Finland, France, Italy, Latvia, Lithuania, Austria, Sweden, Slovenia, Spain, and Hungary. In some of the countries mentioned (e.g. Sweden), however, the legal situation is not clear.

    In Switzerland and Iceland surrogacy is prohibited. Spain and Norway prohibit surrogate motherhood on their national territory, but tolerate surrogate motherhood abroad unless the surrogate mother appears on the birth certificate.


    Surrogacy has come under much criticism. A central allegation are ethical but also often legal concerns both with regard to the child and the so-called surrogate mother who is carrying the baby.

    The child becomes the object of a legal transaction through a surrogacy contract. The best interests of the child, otherwise the central criterion for decisions about adoptions, medical interventions, etc., play no role. For example, the contracts for surrogacy in the USA regularly contain the obligation of the so-called surrogate mother to abort the child at the request of the so-called customer.

    Last but not least, there is also the allegation of child trafficking, since a child is contractually agreed to be handed over from one person to one or more others in return for payment of a fee.

    Religious views

    Roman Catholic Church

    The Roman Catholic Church firmly rejects surrogacy.

    In the Catechism of the Catholic Church it says: “Techniques which dissolve the common parenthood by engaging a third person (egg or sperm donation, surrogacy) are extremely reprehensible. These techniques (heterologous artificial insemination and fertilization) violate the child's right to be descended from a father and mother whom they know and who are maritally related. They also violate the right of both spouses that one becomes father or mother only through the other '( DnV 2,1). ”(CCC 2376; second chapter, article 6,“ III conjugal love ”).


    Web links

    Wiktionary: surrogate mother  - explanations of meanings, word origins, synonyms, translations


    1. Chris Thomale: tenant maternity . Mohr Siebeck, Tübingen 2015, p. 7th f .
    2. Embryo Protection Act (at Juris)
    3. ^ A b Legal regulations on reproductive medicine in European countries. (No longer available online.) Max Planck Institute for Foreign and International Criminal Law, formerly the original ; accessed on January 17, 2013 (database search function (countries / topics) possible at ).  ( Page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link /  
    4. No entry for the child of a Ukrainian surrogate mother Berlin Administrative Court, decision of September 10, 2012 (Az .: VG 23 L 283.12)
    5. ^ Order of the Federal Court of Justice surrogacy through the back door . ( Memento from December 19, 2014 in the Internet Archive )
    6. Decision XII ZB 463/13. Federal Court of Justice, December 10, 2014.
    7. “Surrogacy Tourism” with a view to the current case law of the BGH (PDF document), November 6, 2016
    8. FDP decides much good for LGBTI
    9. The West: FDP politicians want to allow surrogacy in Germany
    10. FDP for egg donation and non-commercial surrogacy
    11. FDP wants a new law on reproduction: the freedom of decision ...
    12. ^ The calamities of the FDP
    13. FDP wants artificial insemination for singles and homosexual couples
    14. ^ Resolution of the LSVD Association Day 2017. LSVD position paper "Rainbow families in law". 29th LSVD Association Day, Berlin, 1/2. April 2017. In:, accessed on March 24, 2018 (PDF; 74 kB).
    15. ^ LiSL: Advances in the law of parentage - but multiple parenthood and surrogacy are missing
    16. a b c Konstantin Svitnev: Legal regulation of assisted reproduction treatment in Russia . In: Reproductive BioMedicine Online . tape 20 , no. 7 , June 2010, p. 892-894 , doi : 10.1016 / j.rbmo.2010.03.023 .
    17. WAZ: More and more women in the US are renting out their belly
    18. queer sperm bank has its sights on gay couples
    19.  ( page no longer available , search in web archives ) 2Template: Toter Link /
    20. Commercial Surrogacy, Its Legacy, We Suffer From! - Commercial surrogacy. In: Retrieved October 14, 2018 .
    21. OVERBLIK Må man bruge rugemor i Danmark? Here he regulate. Retrieved on March 19, 2019 (da-DK).
    22. [1]  ( Page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link /  
    23. Melanie Croyé, Zacharias Zacharakis: Surrogate mothers in Greece: This is not their baby . In: The time . May 24, 2019, ISSN  0044-2070 ( [accessed June 19, 2019]).
    24. ^ Sophie Mühlmann: Childlessness: India's business with surrogate mothers before the end . July 24, 2016 ( [accessed May 15, 2019]).
    25. dpa: Supreme Court: Surrogacy should also be allowed in Israel for gay couples. Retrieved February 29, 2020 .
    26. 会員 へ の お 知 ら せ . Nihon Sanka Fujinka Gakkai, May 28, 2009, accessed June 6, 2009 (Japanese).
    27. 61 歳 の 母親 が 「孫」 代理 出産 国内 最高 齢 か ( Memento from February 28, 2009 in the Internet Archive )
    28. 代理 懐 胎 を 中心 と す る 生殖 補助 医療 の 課題 - 社会 的 合意 に 向 け て - . (PDF) Japan Science Council, April 8, 2008, p. 4 , accessed June 6, 2009 (Japanese).
    29. Assisted Human Reproduction Act, page 4 (English):
    30. Archived copy ( Memento of the original from April 2, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
    31. Human Assisted Reproductive Technology Act 2004: (English)
    32. - ( Memento of the original from July 7, 2015 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
    33. a b K. Svitnev: Surrogacy and its legal regulation in Russia. In: Reprod BioMed Online. Supplement 3rd Abstracts of the 5th Congress of the World Association of Reproductive Medicine, 2010 ( presentation ( memento of the original from February 15, 2015 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice .; PDF; 1.1 MB). @1@ 2Template: Webachiv / IABot /
    34. a b History of surrogacy in Russia
    35. Paternity Beyond the Grave RT (Russia Today TV)
    36. ^ I. Pulya. Posthumous Grandchildren
    37. Moscow court decides: Single men can become fathers through surrogacy. ( Memento of the original from March 5, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
    38. I. Stuyver et al. a .: PostersEthics and Law . In: Human Reproduction . tape 25 , suppl 1 Abstracts of the 26th Annual Meeting of the European Society of Human Reproduction and Embryology, Rome, Italy, 27-30 June 2010, 6 January 2010, p. i235 – i236 , doi : 10.1093 / humrep / de.25.s1.306 ( PDF [accessed on February 1, 2015]).
    39. Anonymous: Russia: No surrogate mothers for gays. In: March 27, 2014, accessed February 1, 2015 .
    40. ^ Zaira Salvador, Romina P .: Surrogacy in Russia: Legislation, Costs and Recognition. October 17, 2019, accessed March 23, 2020 .
    41. International Center for Surrogacy "Vita"
    42. New law: Thailand allows surrogacy only for locals . In: Spiegel Online . February 20, 2015 ( [accessed May 15, 2019]).
    43. Ukrainian Ministry of Health: МІНІСТЕРСТВО ОХОРОНИ ЗДОРОВ'Я УКРАЇНИ НАКАЗ 09.09.2013 № 787. In: Міністерство юстиції України. September 9, 2013, accessed July 14, 2020 .
    44. 15 Facts About Surrogacy • A detailed overview for all countries. In: Feskov surrogacy agency. 2020, accessed on July 14, 2020 .
    45. Ukrainian Ministry of Health: Order of the Ministry of Health for Article 787 on 09.09.2013. In: Feskov surrogacy agency. 2020, accessed on July 14, 2020 .
    46. Anonymous: GB: Homosexual parenting facilitated. In: November 22, 2007, accessed February 1, 2015 .
    47. Aargauer Zeitung: Two fathers for one family in Switzerland could soon become easier
    48. Newsweek Magazine: The Curious Lives of Surrogates ( September 3, 2011 memento in the Internet Archive )
    49. California enacts landmark law
    50. Dr. Mark P. Trolice: Surrogacy in the United States. In: DCIP Consulting Solutions. SL, September 4, 2018, accessed May 15, 2019 .
    51. - ( Memento of the original from March 7, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
    52. Chris Thomale: tenant maternity . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-154239-8 , pp. 13 .
    53. ^ Catechism of the Catholic Church 2376; second chapter, article 6, "III Eheliche Liebe" in German . Vatican website. Retrieved February 28, 2014.