Surrogate motherhood: Do we need a new concept of family?
The controversy surrounding surrogate motherhood has continued unabated and is now rippling through the scientific community as well. In this interview, Institute director Anne Röthel offers some guide posts to understanding the questions that German family law is faced with because of it in an international context. She also discusses the challenge for lawmakers and the potential role of legal scholarship.
Surrogate motherhood is banned in Germany. The mother is always, and exclusively, the woman who gave birth to the child. Is that the way it has to be?
If we look at private law in other countries, we see that the rule established in Germany—that the birth mother is the one, true, genuine mother—is only one among many possible legal concepts valid in a particular society and at a particular time. In the background are normative models, religious thinking, and assumptions about the significance of pregnancy and birth as predicates to the eventual parent-child relationship. Part of the account has to be that we overvalue pregnancy and birth in favour of other factors. But German law will only be able to maintain its birth-mother dogma for as a long as it can be justified as not only traditional but also rational. In that light, the controversy about surrogacy can be seen as a typical crisis of tradition.
Although surrogacy arrangements are illegal in Germany, German courts and other authorities regularly recognize the parentage of children born to surrogate mothers in other countries. What is the role of domestic adoption in this process?
Many people who want to have a child this way will seek out a jurisdiction where they will already have been declared the parents by a local court. One such jurisdiction in particular is California. The only remaining issue for Germany in that case is to “recognize” a parent-child relationship that’s already been legally established abroad. If this way is shut because there is no court order that would be capable of recognition, the would-be parents are shunted into adopting the child in Germany: surrogacy cases become adoption cases. Because the adoption process takes so long, not only are the practical consequences hard to accept, but from a systemic perspective, it puts adoption to a purpose for which it was never intended. It now becomes an instrument of establishing parent-child relationships, whereas it was actually intended as a way to give a child new parents. To the adopting parents, however, children born to surrogate mothers are not strangers.
Many people today are wondering if German law should take a different position. What can German lawmakers do?
The German legislature is at a crossroads and has been for a long time. It could leave things be, which is to say that surrogacy is banned domestically, but those who have the financial resources to engage in “surrogacy tourism” are factually able to get around it. Or it could decide to go the way of Italy, for example, and criminalize the act of engaging a surrogate mother abroad as a matter of domestic law. The third way would be to regulate surrogacy. From a legal policy perspective, there are reasons to seek alternatives to criminalization. Plenty of other jurisdictions, such as England and Wales, Portugal, or Greece, have found various solutions that amount to partial legalization of surrogacy, and they are experienced in applying them. So it would be worth a legislator’s while to take a comparative view and look beyond our national borders. It would open up the debate, which is overdue.
But lawmakers should also not lose sight of the fact that regulations don’t lend themselves to simply being “implanted” or “transplanted”. The task will be to develop a regulatory model that is also a good fit for German society, its values, and its historical experience. In particular, this will require coming up with a rich concept of voluntary consent and bodily autonomy that resonates with our constitutional history. This is where legal scholars and basic research need to be involved.
Where does the surrogacy debate stand in relation to other trends in German family law right now?
Surrogate motherhood is just one among many issues confronting us today in light of changing notions and expectations about family. Many of these fields are lying fallow. Surrogacy is one of those, but as a field of law it touches on many unsettled issues. It touches on reproductive rights and bodily autonomy and self-determination. It also touches on how we value parenthood for same-sex couples. Legal scholars and society at large have been grappling with the question of what the legal basis for parentage ought to be (genetics, biology, intention, or social function) and why.
Another field where we need legal scholarship to be forward-thinking, and to question legal concepts, has to do with the legal consequences of marriage and its distinction from other kinds of arrangements. There have been quantitative and qualitative changes in this area that the family law parts of the German Civil Code do not remotely reflect.
What might a universal approach to surrogate motherhood eventually look like?
No matter whether German law goes the way of permitting and regulating surrogacy, German courts and government agencies will continue to be confronted with surrogacies carried out in other countries. There is no global society that is going to develop a uniform, legal, rule-based approach to surrogacy. The Hague Conference on Private International Law has already achieved global influence regarding legal standards and practices in the 1993 Adoption Convention. There is now demand for detailed analysis by legal scholars working in private international and transnational law who will think ahead about what that kind of path might look like for surrogacy.
Professor Anne Röthel studied law at the University of Cologne and the University of Clermont-Ferrand. She qualified to be a law professor at the University of Erlangen-Nuremberg in 2003 and held the Chair of Civil Law, European Law, and Private International Law at Bucerius Law School from 2004 until 2023. She has been a guest professor at the Université Paris Panthéon-Assas annually since 2010 and has conducted research at Oxford and Kyoto. She joined the Institute as a director in 2024. Her activities include co-editing the journal Zeitschrift für das gesamte Familienrecht (FamRZ), serving on the board of the Hamburgische Wissenschaftliche Stiftung, and memberships in the Association of German Jurists, the German Section of the International Commission of Jurists, the Working Group for Legal Studies and Contemporary History at the Academy of Science and Literature in Mainz, and the Göttingen Academy of Sciences and Humanities in Lower Saxony. She has been the Chair of the Max Planck Law network for legal studies since October 2025. The University of Edinburgh named her an Honorary Professor of Edinburgh Law School in 2026.
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Image: © Max Planck Institute for Comparative and International Private Law / Patrice Lange
