GENERAL LEGAL FRAMEWORK

Germany – to start with the result of this report – was correctly placed by the editors of this volume in the group of legal systems which follow a prohibitive approach towards surrogacy. Most of the questions posed in the questionnaire for the national reports have to be answered in the negative: No, there are no specific legal rules dealing with surrogacy, apart from criminal law provisions which ban surrogacy (see below Section 2.1.). No, there is no authority set up to oversee surrogacy in Germany, except the public prosecutor which will start criminal proceedings if he or she finds out that there has been a case of surrogacy in Germany. And no, there is, as far as I can see, no relevant statistical data on the number of surrogate births in Germany or the number of surrogacy arrangements undertaken by German citizens in another jurisdiction. Interestingly, the official annual criminal statistics of the Federal Ministry of the Interior, which counts with German efficiency all criminal offences committed on German soil, do not specifically mention, at least not in the last years, any violations of the provisions banning surrogacy. It appears that criminalising surrogacy has restrained the medical profession from implementing surrogacy arrangements in Germany. Doctors, of course, face losing their medical licence if found violating the provisions against surrogacy, and surrogacy without medical assistance is rather difficult. The surrogacy hostile attitude of German law can mainly be explained by the fact that the pertinent provisions date back to the beginning of the 1990s and reflect the ethical, scientific and political debates of the 1980s.

SURROGACY ARRANGEMENTS IN GENERAL

THE ILLEGALITY OF SURROGACY IN GERMANY

Therefore, the starting point of a report on the German law of surrogacy has to be criminal law. German criminal law tackles surrogacy not directly but rather indirectly from two different angles, outside general criminal law, by special legislation.

First and foremost, most reproduction techniques required for a successful surrogacy are forbidden by the provisions of the Embryonenschutzgesetz (‘ESchG’), the German Act for the protection of gametes.