No Genetic Link, No Recognition? The German Federal Court of Justice on Cross-Border Surrogacy

Recently, a decision of the German Federal Court of Justice (Bundesgerichtshof or BGH) was published on the recognition of a judgment in a case of international surrogate motherhood. An unmarried German woman had entered into a surrogacy arrangement in Mexico City. Unlike in previous cases decided by the court, donated eggs and donated sperm were used, meaning the child had no genetic link to any intended parent.

Nonetheless, a decision was issued by the Tribunal Superior de Justicia de la Ciudad de México, which declared the intended mother to be the child’s legal mother, thereby excluding the surrogate mother’s legal motherhood.

The intended mother sought to have her parenthood registered in the German civil register based on a recognition of the Mexican decision (Sec. 108 FamFG). After a back-and-forth between the lower courts, the case reached the BGH on appeal. The BGH reasoned that the recognition would infringe German public policy (Sec. 109(1)(4) FamFG) and could therefore not be recognised.

Distinction from previous case law

With this decision, the court drew a distinction to his previous case law, in which it had held that it does not infringe on German public policy to recognise a foreign decision or apply foreign law that grants parenthood to the intended parents in cases of international surrogacy. In those cases, the court had repeatedly highlighted that its assessment applied “at least if” one intended parent was also the genetic parent, leaving open the treatment of cases without a genetic link. With this new judgment, the court has made clear that it considers a genetic link to be a necessary requirement for compliance with German public policy.

A renewed focus on biological parenthood

The decision reflects a general and apparently growing focus in German law on biology as the basis for parental rights.[1] For instance, this focus can be seen in recent case law of the BGH on the parenthood of trans persons, as well as in a decision of the Federal Constitutional Court on the right of a child’s genetic father to challenge the legal paternity of another man. In the transposition of the latter judgment into the German Civil Code, the legislator has gone beyond what was expressly demanded by the Constitutional Court, thereby further strengthening the rights of the biological father. A final example of the relevance of biological descent is the fact that in lesbian married couples the wife of the woman giving birth does not automatically become a parent under German law but must adopt the child – a requirement which is currently under review by the Federal Constitutional Court.

Surrogacy as human trafficking

The court’s finding of a public policy infringement does not convince me. The reasoning is rather short. The court accepts that the specific interests of intended parents in a surrogacy arrangement might not be affected by the lack of a genetic link to the child. Nevertheless, the court claims that, without such a link, the surrogacy agreement de facto constitutes a form of human trafficking. Its only apparent argument for this assessment is that it cannot make a normative difference whether the parents “order” a child before or after birth.

This conflation overlooks a significant difference, which, however, does not hinge on whether the intended parents were involved before or after the moment of birth – as the court suggests – but on whether they were involved before or after conception: If the intended parents are involved before conception, and only then, will the conception be grounded in their intent to parent – a factor which has gained increasing relevance in different jurisdictions as a basis for legal parenthood and has also been discussed in this sense in Germany. From this perspective, it does make a difference whether the intended parents became involved before or after conception, thus permitting a conceptual distinction between surrogacy and human trafficking: If the child is only conceived because of the involvement of the intended parents, then they are not breaking up a preexisting family which could have continued without their intervention.

Difficulty in proving the difference

The court, however, rightly highlights a factual problem with this distinction. If no intended parent is genetically related to the child, it can be very difficult to prove whether the intended parents were involved before conception. This creates the danger that human trafficking could be disguised as surrogacy. While this is a serious and legitimate concern, the difficulty is evidentiary rather than conceptual. Where there is doubt about whether the intended parents were involved before conception, the court may ask for additional evidence and might ultimately refuse recognition. But where the existence of a genuine pre-conception surrogacy arrangement is established, the absence of a genetic link does not by itself turn the arrangement into child trafficking.

Of course, the court might be so sceptical of surrogacy without a genetic link that it wants to treat all such cases like cases of human trafficking because it assumes that, in most of these cases, the intended parents were actually not involved prior to conception and that, in most cases, no surrogacy took place. If this is the court’s motivation, then it should be made explicit. It is one thing to claim that surrogacy without a genetic link is a form of human trafficking, and another to claim that such cases of surrogacy should be treated like human trafficking because it cannot be proven with enough reliability that the intended parents were involved prior to conception and that the case therefore is a genuine case of surrogacy.

Extension of public policy 

Another weakness of the court’s reasoning is that it stretches the public policy exception. The court goes beyond public policy’s focus on the result of the recognition of a foreign decision. The result of the recognition, in the case at hand, would be the parenthood of the intended mother. The court does not appear to be critical of this result in principle. In fact, it spends significant time and effort highlighting that, through adoption, there is an effective and fast path for the intended mother to become the legal parent under German law and that therefore the refusal of recognition does not infringe on human rights as stated in the jurisprudence of the ECtHR. The BGH even highlights that the surrogate mother’s consent to the adoption can be replaced by the adoption court if she does not participate in the court proceedings, for instance because she considers the intended mother to be the legal mother already. The BGH further adds that, in an adoption proceeding, the best interests of the specific child must prevail over any concepts of general prevention of surrogacy.  This passage on the availability and even ease of adoption suggests that the court is not in principle opposed to the establishment of the parent-child relationship to the intended mother. However, if it does not oppose this outcome, which would be the result of the recognition of the foreign decision, it seems contradictory to consider that same result to be contrary to public policy, i.e. to be obviously incompatible with significant principles of German law.

Examination of the child’s best interests

Another background for the BGH’s reluctance towards the foreign judgment might be that the Mexican proceedings did not contain an assessment of the child’s best interests, because it treated surrogacy as a case of filiation and not as a case of adoption – a qualification which the BGH implicitly accepts as it does not apply the rules on recognising a foreign adoption decision. The BGH does not mention a lack of an examination of the child’s best interests as a reason to apply the public policy exception. Therefore, such a consideration might not have played any role at all. However, if it did, it would not be a convincing argument to refuse recognition. The desire for an examination of the specific child’s best interests might appear plausible at first. But paradoxically, applying the public policy exception to enforce such an examination, is actually likely to harm the best interests of the child. The non-recognition creates a limping relationship and leaves the child without a legal parent-child relationship with the person, who presumably is their primary and only caregiver.

[1] See on this also Dutta, FamRZ 2026, upcoming in a comment on the decision discussed here.