Jens Spahn becomes a father via surrogate in the USA – the legal situation in Germany

Legal situation in Germany

Under German law, surrogacy is prohibited. The Embryo Protection Act prohibits doctors from artificially inseminating a surrogate or transferring a foreign embryo to her. Arranging surrogacy is also punishable – however, under Section 3 of the Act, only the arranging or medically involved persons are punished, not the intended parents and not the surrogate herself. «The mother of a child under German law is the woman who gave birth to it, that is, the surrogate mother,» the legal situation clarifies.

Because commercial surrogacy is «in fact prohibited in Germany and Switzerland,» couples wishing to have children go abroad. It is permitted, among other places, in the USA and Denmark. According to reports, frequently used destinations include Ukraine and Georgia, as well as Greece. Great Britain and Portugal only permit altruistic surrogacy and exclude foreign couples. In the USA, regulation is the responsibility of the individual federal states; in California, for example, paid surrogacy is permitted. In Ukraine, according to reports, only heterosexual married couples may pursue this route.

Routes abroad: USA, Denmark and others

The cost of surrogacy in the USA is estimated at around 150,000 euros – a sum that many couples in Germany cannot afford. Typically, an embryo is created through in vitro fertilisation and transferred to the surrogate mother. Under the rules of many countries, a prerequisite for legal parenthood and the recognition of German citizenship is that at least one intended parent is genetically related to the child. In the case of Spahn and Funke, Funke is considered the genetic father, which facilitates recognition of paternity in Germany.

The CDU had reaffirmed at its party congress in February that surrogacy should remain prohibited regardless of the motivation. A party spokesperson told the German Press Agency that it continues to «adhere to the party congress resolution from February.» The CDU reaffirms «its demand to continue to ban surrogacy in Germany – including in altruistic models – in order to prevent abuse, exploitation and health risks.» The CDU's Women's Union expressed a similar view.

Positions of the CDU and the federal government

The SPD-led Federal Ministry for Family Affairs referred to the prevailing legal situation. A spokesperson told the newspapers of the Funke Media Group on Thursday: «The coalition agreement does not provide for any change to the current legal situation.» The coalition agreement between the CDU, CSU and SPD also does not provide for any changes to it. The legal situation therefore remains unchanged for the time being.

On social media, the reaction to Spahn's news was in part sharp. Comments included: «Surrogacy is human trafficking and rightly punishable. It just apparently does not apply to Spahn.» Others wrote curtly: «Off to the slammer.» From the ranks of the Union, according to media reports, there was also a call for Spahn's resignation. No official statement from the parliamentary group leadership is available on this.

Spahn's earlier statements

Spahn himself had still expressed himself cautiously in a 2015 GQ article: «As a gay man and a Christian, I personally find it very difficult to come to terms with the idea of a rented womb.» At that time he was Parliamentary State Secretary in Angela Merkel's government. He added at the time: «Accepting that I will not become a father in a natural way requires a great deal of humility. Whether I can muster that, I do not know.»

In 2020, during his time as Federal Minister of Health, Spahn rejected an FDP demand for the legalisation of surrogacy. He pointed to «to be expected difficulties in the child's self-discovery» and «negative effects» on its development. His ministry answered a parliamentary query at the time with the note that a relaxation was not planned; a risk to the child's well-being was to be feared.

Report of the expert commission

The former Ampel government had appointed an expert commission that was to examine, among other things, the possibility of legalising surrogacy. In its final report in 2024, the commission concluded that surrogate mothers are «not necessarily instrumentalised in a manner that violates human dignity», but identified «significant risk potentials». Only altruistic models were examined; these were conceivable exceptions, such as when a close friendship or kinship exists between the surrogate and the intended parents, it stated.

According to information from the report, the United Nations is striving for a global condemnation of commercial surrogacy. A UN expert demanded «to recognise surrogacy as a system of violence, exploitation and abuse against women and to abolish the practice worldwide.» Critics also accuse Ukraine of a commercial «baby factory» practice in a multi-million-euro business.

Other politicians affected

Spahn is not the first prominent politician in Germany to announce that he has become a parent through a surrogate. In the spring, Hendrik Streeck, CDU member of the Bundestag and the federal government's drugs commissioner, also announced family news in the «Bild» newspaper; he and his partner, health official Paul Zubeil, had, according to their own accounts, used an American woman as a surrogate. SPD member of the Bundestag Johannes Arlt and his husband had, according to reports, already received a surrogate child from Denmark in 2023.

Commentator Ariane Bemmer sees Spahn's route as a violation of applicable German law and writes that it is not a private matter. Which organisation, at which location and at what price Spahn's family organised the route to America is not publicly known. What is known is that the transitions between legal and actual parenthood via recognition of paternity are possible under certain conditions.

Background and classification

Spahn has been married to Daniel Funke since 2017; Funke is described as a manager. The article is an excerpt from the newsletter «Der andere Blick am Abend» by NZZ Germany author Susanne Gaschke. Celebrities such as Paris Hilton, Alec Baldwin, Nicole Kidman and Sarah Jessica Parker are also linked to surrogacy in reports. Friedrich Merz is chairman of the CDU.

The reports on Spahn's fatherhood were broadcast on 16.07.2026 on Deutschlandfunk's programme; a report on WDR.de ran on 16.07.2026 at 13:58. The substantive message of the reports is also read as a signal to CDU chairman Friedrich Merz, who has so far not publicly commented on the case.