The term “surrogacy” means that a foreign woman agrees to be fertilized by a man’s sperm, gives birth to a child, and after the birth, releases the child to the couple, who are, of course, the biological father and his wife. This foreign woman, or rather surrogate mother, would thus be the mother of the child in the genetic sense, but the parents are the couple raising the child. The decision of a couple to have a child carried by a surrogate mother is of course due to the fact that they cannot have children themselves. This is the “traditional” method of surrogacy. Since the beginning of the 90’s, surrogacy has also been carried out in another way, in which the egg does not come from the surrogate mother, but from the wife of the future father. Fertilization already takes place in the test tube and the fertilized egg is then implanted into the surrogate mother (=in vitro fertilization). The surrogate mother is thus no longer genetically related to the child.

Historical Background

On January 4, 1985, “Baby Cotton” was born in London, artificially conceived and carried by a surrogate mother for the equivalent of 24,760 DM. This birth led to a worldwide discussion on the subject of surrogacy.

Only 9 days later, on January 13, 1985, the Supreme Court of England in London ruled that the child carried by the surrogate mother must be handed over to its principals. The case triggered heated discussions in Germany as well.

Legal Regulations And Prohibitions

Overview

• Germany prohibited, additional prohibitions on advertising and mediation.
• France prohibited, contracts for surrogacy are not allowed.
• Belgium not prohibited.
• Denmark prohibited.
• England permitted, surrogacy permitted, prohibition of payment, contracts directed at surrogacy are unenforceable, commercial mediation activity directed at surrogacy is prohibited
• Netherlands practiced, surrogacy not prohibited, but punishable by law: inducing surrogacy arrangements, publicly offering surrogacy services, publicly seeking women willing to become surrogates.
• Norway prohibited.
• Sweden prohibited.
• Austria prohibited.
• Switzerland prohibited.
• Spain not prohibited, but surrogacy agreements are void.

Examples And Explanations Of The Legal Regulations

Germany:
On January 1, 1991, a so-called Embryo Protection Act was established in Germany, prohibiting surrogacy. According to the German Embryo Protection Act, the fertilized, viable human egg is already considered an embryo from the moment of nuclear fusion.

Among other things, the Embryo Protection Act prohibits these matters, which are important for the topic of “surrogacy”:

• The transfer of a foreign unfertilized ovum to a woman.
• Artificially inseminate an ovum for a purpose other than to induce pregnancy in the woman from whom the ovum was derived.
• To remove an embryo from a woman before completion of its implantation in the uterus for the purpose of transferring it to another woman or using it for a purpose other than its maintenance.
• Performing artificial insemination on a woman who is willing to give her child permanently to a third party after birth (surrogate mother), or transferring a human embryo to her.
• A misuse of human embryos (e.g. sale of an embryo created by artificial insemination).

The contract in which the surrogate mother agrees to give up her child contradicts moral concepts about the venality of pregnancy and a child. The existence of two mothers may cause emotional conflicts in the child. In addition, there is the danger of commercial exploitation. Surrogacy is therefore prohibited in Germany. However, only the doctor who performs artificial insemination or embryo implantation on the surrogate mother faces a prison sentence of up to three years or a fine. The surrogate mother remains exempt from punishment just like the client. This also applies in connection with the above-mentioned egg transfer.

USA:
In the USA in 1987, a child was carried by a surrogate mother who had entered into a surrogacy contract with a couple who were unable to have children themselves. After the child was born, the woman refused to give the child to the couple with whom she had entered into the surrogacy contract. When the case went to court, the New Jersey State Supreme Court justices declared the surrogacy contract void, but awarded the couple custody of the child. However, the surrogate mother was granted regular visitation rights, which violated the original agreed-upon contract. The surrogate mother, who was genetically related to the child, was thus granted extensive rights. Opponents of commercial surrogacy hoped that the annulment of surrogacy contracts would also come into play in other states in the USA. In California, however, surrogacy contracts are legal. In the case of a 29-year-old, a court had to rule for the first time on the whereabouts of a child carried by a woman who is not the genetic mother because she was implanted with a fertilized egg from the future couple. The California court did not join the New Jersey State Supreme Court in its ruling. It declared the surrogacy contract legal and did not award the surrogate mother custody or any visitation rights. The judge rejected any sharing of the child between the two mothers. He argued that the surrogate mother had not assumed any function other than that of a foster mother, temporarily feeding, protecting, and nurturing the child. Parental rights did not arise from the gestation of a child.
In the U.S., surrogacy is regulated differently by different states. There is no general regulation.

Italy:
For the time being, it was felt that surrogate mothers carrying the children of others simply should not exist in the country, which has about 98 percent registered Catholics. The case spent almost five years in the various offices and instances and was almost forgotten: A woman had filed a lawsuit against a gynecologist because, in accordance with the guidelines of the medical association, he had refused to implant a fertilized embryo in a family friend. Now, a magistrate in Rome has ruled that a woman may indeed make her womb available to a friend if she is unable to have children. The doctor responded, “If the court orders it, I’ll do it.” As justification, she had only pulled out some rulings by Italy’s highest courts that “motherhood is a fundamental right.” “If that applies,” the judge said, “all objections must be set aside.” After all, such norms had also sanctioned the controversial adoption of children of unknown origin from abroad, and recently raised the age for adoptive parents from 40 to 50. The principle is very simple: there is a couple who cannot have children and would like to have one. In addition, there is a fertile woman who is in need of money and would be willing to give birth to a child with the man’s sperm in exchange for money for the infertile couple. Why should this be forbidden? With it in principle nevertheless all would be helped. It may be that the child will lack care, love and financial means with the “surrogate parents” (surrogate parents in quotation marks, since the father is the child’s biological father), because after all the couple has such a strong desire to have a child that they will, in my opinion, look after and love the child as their own. Therefore, there will be no lack of financial means, because the couple would pay thousands of euros for a child wish, which speaks for the fact that they are financially stable, because poor people do not have just so much money for a child wish over, which can not exactly be counted to a subsistence need. So much for the, as I think, usually secured welfare of the child. It is possible that the surrogate mother may form a deep emotional bond with the child and not want to miss it after the birth, as argued by a feminist association in the USA, but in my opinion this is no real reason to ban surrogacy. It should be taken into account that all surrogate mothers enter into the contract voluntarily and are more than adequately paid for it. Certainly, before entering into the contract, everyone, especially the surrogate mother, should be aware of what this will entail, but isn’t that the case with any contractual commitment? Opinions may differ on the second method of surrogacy, because here, as described at the beginning, the fertilized egg of the donor couple is implanted in the surrogate mother (=in vitro fertilization), whereby the surrogate mother is genetically no longer even the mother of the child.