In many other countries, it wouldn't have raised an eyebrow. But when Christian Democratic Union (CDU) parliamentary leader Jens Spahn revealed this week that he had become a father, it led to calls for his resignation from within his own party.
Spahn has been married to his husband Daniel Funke since 2017, and has previously spoken about his hopes of starting a family. In an exclusive Bild article published on Wednesday, the couple announced the birth of their son George, who was born via a surrogate mother in the United States.
"The surrogate mother is now, as it were, part of the family and will be there for Georg throughout his life," the couple reportedly wrote in a message to friends and family. "We are over the moon and absolutely smitten with the little lad."
Spahn's warm words, however, drew a cold response from members of his own party. Some of whom claimed he had used his money and influence to willfully ignore German law. Here's why his decision is so controversial in Germany.
What are Germany's rules on surrogacy?
Having a child through a surrogate mother is forbidden under German law.
The Embryo Protection Act (EschG), passed in 1991, specifically prohibits doctors and other healthcare practitioners from implanting an embryo in a woman who does not intend to keep the child after its birth. This means that while fertility treatments such as IVF are legal, surrogacy arrangements are not.
Though prospective parents don't commit an offence if they try to have a surrogate child, medical practitioners who help them can face up to five years imprisonment for doing so. Doctors who are involved in surrogacy in any way can also be punished for related crimes such as "incitement" or "complicity".
Meanwhile, promoting surrogacy – for example through advertisements in the media – can result in a fine or up to one year's imprisonment. Profiting from surrogacy financially is also prohibited by the Adoption Act.
In addition, the German Civil Code forbids and effectively invalidates any commercial contracts between a surrogate mother and the genetic parents of a child. In the eyes of the German legal system, the mother of a child is the woman who gives birth to it - not the woman who provides the egg.
READ ALSO: Does having a baby in Germany make it easier for parents to become citizens?
Why is German law so strict?
Germany’s uncompromising approach is rooted in concerns about human dignity, exploitation and the welfare of the child. Surrogacy agreements are generally considered sittenwidrig, or contrary to public morals, and therefore unenforceable.
The law also places greater weight on the rights and bodily autonomy of the woman carrying the pregnancy than on the intentions of the would-be parents.
Another stated reason for the ban is to prevent pregnancy and children becoming commercial services or commodities. Policymakers also want to avoid what lawmakers have termed “divided motherhood” between a genetic and a gestational mother.
To make matters worse for Spahn, the CDU's position was confirmed as recently as February, when the party passed a resolution reaffirming its commitment to an absolute ban on surrogacy "to prevent abuse, exploitation and health risks".
READ ALSO: How German reproductive laws are pushing women to seek therapy abroad
"In light of ethical, legal and practical concerns regarding surrogacy, the CDU of Germany reaffirms its call for surrogacy – including altruistic models – to remain banned in Germany," the party resolution states.
Surrogacy abroad
Technically, couples can be involved with surrogacy that occurs beyond Germany's borders, which is the route that Jens Spahn and his husband have taken. However, the path to surrogacy abroad is legally a bit murky and may still be seen as an attempt to subvert German law.
One key issue is that Germany doesn't automatically acknowledge the intended parents of the child in a surrogacy arrangement. This means that if a child is born abroad to a surrogate mother, the genetic mother and/or father will have to take certain steps to be legally recognised as the parent.
Thanks to a 2014 Federal Court of Justice ruling, foreign court decisions regarding legal parenthood can be recognised in Germany, but only if:
- the surrogate mother is not genetically related to the child, and
- at least one of the intended parents has a genetic connection to the child
So if a surrogate is born abroad and the intended parents are legally recognised in that country, the same should apply in Germany. However, a court decision is required, rather than simply showing the names on a foreign birth certificate.
READ ALSO: Surrogate children have no right to German passport, court rules
For fathers, the route can be slightly easier. Though paternity cannot be proven through a surrogacy contract, it can be established through a voluntary statement from the surrogate mother or a court decision in Germany.
They can then establish paternity and pass any citizenships they have – including German citizenship – onto their child.
Things can become a bit more complicated, however, if the surrogate mother is married, as generally her husband would be considered the father of the child.
For couples looking into surrogacy in Germany, it's worth seeking counsel both at home and in the country where the child may be born to avoid possible issues.
Which countries allow surrogacy?
In a number of countries around the world, a system known as "altruistic" surrogacy is legal. This means that woman can opt to assist a couple by acting as a surrogate mother, as long as they do not profit from the arrangement financially. (Covering the costs of pregnancy and childbirth is permitted.)
Countries in which altruistic surrogacy is permitted include Canada, the United Kingdom, Australia, New Zealand, and South Africa. In Brazil, altruistic surrogacy is usually only permitted via a relative, though exceptions are possible.
In some cases, there are also restriction on who is able to seek a surrogacy arrangement. In Ukraine and Georgia, for instance, the law is generally limited to heterosexual couples. In Armenia and Kazakhstan, commercial surrogacy arrangements are permitted, though access is heavily regulated.
In the US, where Spahn's son was born, a patchwork of rules are in place depending on the state. While some states forbid surrogacy entirely, more permissive states like California allow arrangements for same-sex, single and foreign couples and also permit surrogacy in exchange for money.
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