Surrogacy in the Debate: Spahn's Withdrawal and the Open Question of Regulation

In Germany, surrogacy is prohibited under the Embryo Protection Act of 1990. Both the brokerage and the medical treatment as well as the implantation of an egg cell and the entire medical support of the procedure are prohibited. Egg cell donation is also banned in Germany. The law has barely been amended since it came into force. At the same time, German citizens are not prohibited from having such procedures carried out abroad, which is why many couples resort to offers overseas.

Spahn's Resignation and the Legal Situation

An expert commission on reproductive self-determination and reproductive medicine, which had been appointed by the then "Ampel" coalition in 2024, had concluded in its report that children born through surrogacy largely appear unremarkable. The verbatim conclusion: "Essentially, these studies show that the children after surrogacy – just like the other children – overall appear to be barely conspicuous." The commission also recommended considering so-called altruistic surrogacy without payment, provided the well-being of the surrogate mothers and child protection are ensured. Federal Family Minister Karin Prien (CDU) pointed out that the unfulfilled desire to have children is not addressed in the current coalition agreement of the federal government.

The German Society for Gynecology and Obstetrics (DGGG) pointed out in a statement a significantly increased risk of premature births and preeclampsia in surrogacies. Preeclampsia typically occurs in the second half of pregnancy and is associated with high blood pressure and organ damage; affected women have a lifelong increased risk of cardiovascular disease. Barbara Schmalfeldt, an expert at the University Medical Center Hamburg-Eppendorf and second vice president of the DGGG, emphasized that no long-term studies on surrogacy exist to date and that the professional society views the practice critically.

Supporters of a Limited Legalization

The chair of the German Ethics Council, Helmut Frister, also urged a societal debate. "If you don't have the debates, the problem will latently persist," he said. The unfulfilled desire to have a child is existential for many and can threaten happiness in life; it is "not a lifestyle issue." Frister also called for addressing the issue of egg cell donation, since "society as a whole is shifting the problem abroad." He also pointed to a significant backlog in modernization in reproductive medicine in Germany.

Supporters of a limited legalization point to lived practice. SPD member of the Bundestag Carmen Wegge stated: "I am personally therefore in favor of introducing altruistic surrogacy within narrow limits in Germany as well." She also criticized that surrogacies abroad frequently take place in a legal environment that insufficiently protects women from health and financial exploitation. The Greens' parliamentary group leader, Britta Haßelmann, spoke out in favor of holding the debate in parliament. Family law expert Marko Oldenburger, who has accompanied many people who became parents through surrogacy abroad, demanded: "It is urgently time to recognize lived practice and create a safe framework in Germany."

Swiss Parallel Debate on Stepchild Adoption

In Switzerland, where surrogacy is also explicitly prohibited – the Federal Constitution bans embryo donation and all forms of surrogacy – the debate had already gained momentum before the German case. In the canton of Zurich, 82 cases were statistically recorded between 2012 and 2023; a cantonal survey counted a total of 144 cases for the years 2016 to 2019. According to statistics, most intended parents in Zurich are between 31 and 40 years old and heterosexual. Costs for international surrogacies range from several tens of thousands up to 200,000 Swiss francs; in the USA, total costs were already as high as $200,000 in 2022, and in Ukraine around €50,000.

In June, the Council of States stopped the Swiss revision to facilitate stepchild adoption and tasked the Federal Council with bundling the issue with further questions of descent law. FDP National Council member Hans-Peter Portmann from Zurich stated that "legalization of surrogacy is needed, even if he personally has some reservations." His Lucerne colleague Michael Töngi (Greens) also said: "The debate is overdue." In contrast, SVP National Council member Nina Fehr Düsel wrote on X: "Surrogacy is rightly also banned in Switzerland." Valais-based Centre Council of States member Beat Rieder argued that the draft served intended parents "who knowingly disregarded the Swiss ban on surrogacy" and sought to force retroactive legalization of their conduct through the facilitation of stepchild adoption.

Critics Warn of Exploitation

Critics of any opening point to global imbalances. CDU member of the Bundestag Mechthild Heil described surrogacy as an "exploitative system between commissioning parents and surrogate mothers." The Left politician Kathrin Gebel, her parliamentary group's spokesperson for women's policy, warned: "Under capitalist conditions, pregnancy risks becoming a commodity." She also sees health risks, dependencies, and familial pressure even in altruistic forms. The gay organization Pink Cross, by contrast, demands that parent-child relationships established abroad through surrogacy be recognized in Switzerland without bureaucracy.

A report titled "Mapping Global Surrogacy," published in 2024 by the Gunda Werner Institute of the Heinrich Böll Foundation, examines how legal loopholes in the field of surrogacy are exploited. Amina Nolte, consultant for reproductive justice at the Institute, stated: "Whenever one country bans surrogacy, the business shifts to another country, with different national regulations – or regulations that do not yet exist." In Georgia, where surrogacy is permitted for heterosexual couples from abroad, a recent scandal attracted attention: 24 surrogate mothers did not receive the promised compensation after giving birth; the affected women predominantly came from third countries such as Russia or Central Asia and had little access to legal help.

Global Practice and Domestic Recognition

German legal practice has partially opened up through the recognition of foreign decisions. German authorities recognize decisions by American courts that establish both spouses as parents; this practice dates back to a 2014 ruling by the Federal Court of Justice. German embassies abroad give couples checklists with the documents required for the legal entry of a child born through surrogacy. Switzerland, by contrast, refused in a landmark ruling by the Federal Court to recognize a paternity established in California; there, the woman giving birth is initially considered the mother, while a married surrogate's husband would, according to the commission's report, be the father.

Karin Prien, herself the mother of three sons, expressed openness to a review of the Embryo Protection Act and the age limit of 40 for adoptions – but not in the currently heated situation. She pointed to a party convention resolution passed in February by the CDU/CSU, according to which not only commercial but also so-called altruistic surrogacy is incompatible with the values of the CDU. She could "hardly imagine" a course correction by the party. Chancellor Merz stated with regard to Spahn's case: "We have a clear legal situation on this in Germany" and saw no need for change.

The jurist and former candidate for the Federal Constitutional Court, Frauke Brosius-Gersdorf, accused the Union of denying women the right to self-determination through the ban on surrogacy and egg cell donation and of wanting a "paternalistic state." Federal Family Minister Prien, in turn, emphasized: "Over the nine months of a pregnancy, you build a strong bond with the child. That must be incredibly difficult. Personally, quite honestly, I cannot imagine it." The Working Group of Social Democratic Women in the SPD has, according to its co-chair Ulrike Häfner, not yet taken a position on surrogacy.

International Comparison and Outlook

Internationally, the picture is heterogeneous: surrogacy is permitted in several U.S. states and in countries such as Ukraine; in Georgia, the legal basis is extremely thin, with only a single paragraph regulating the business. A gray zone exists in the Turkish-occupied part of Cyprus. According to estimates from German official circles, most German couples now go to Georgia, followed by Mexico. Amina Nolte called for the debate to focus less on the person of Spahn and more on the topic of surrogacy itself.

Five years after the introduction of marriage for all, the Swiss Federal Council had proposed facilitating stepchild adoption; the draft was adopted by the National Council in the spring, in part with more far-reaching provisions. The Council of States stopped it in June. In Switzerland, an unmarried genetic father can acknowledge paternity, while intended mothers or fathers can generally only become parents through stepchild adoption; under current law, this requires at least three years of shared household with the legal parent and one year of caring for the child prior to adoption. The Zurich civil registry office