It doesn't work to reduce the surrogacy debate to a simple yes or no. In particular, we need to talk about how.

Illustration - a pregnant woman with two partners or perhaps female partners

A paternalism that mainly protects women from “themselves” does not sit well with society Illustration: Katja Gendikova

Surrogacy is prohibited in Germany under the Embryo Protection Act. The Civil Code clearly states that the person who gives birth to the child automatically assumes the primary parental position. In simple terms: whoever gives birth to the child legally becomes a mother. With this solution we have calmed down; With this regulation, debates are no longer necessary. At least, that is what it seems.

Since Russia's large-scale attack on Ukraine and reports of unclaimed children, the issue of surrogacy has returned to the public consciousness in Germany. And so, the simple idea: surrogacy always happens, but not here. Parents from Germany fulfill their wish to have children in other countries. Anyone who can afford it in the United States.

Whoever has less money takes the legally uncertain path of Eastern Europe. Surrogacy has long been part of reality, just an outsourced part. The Germans are content with the simple prohibition and close their eyes to everything that happens outside. We consider this social hypocrisy to be useless and therefore strongly advocate for a social debate.

In its coalition agreement, the current federal government agreed that the issue of surrogacy would initially be dealt with by a commission on “reproductive self-determination.” We would like to contribute our impulses to the debate. A debate that should be carried out in a much more complex way than with a simple yes or no.

Without the right to have a genetic child

For us, the child's perspective is at the center of every consideration. We are convinced that there is no “right to have a genetically own child” of any kind. A child is not an object, nor a projection surface of one's desires, nor a possession. According to the UN Convention on the Rights of the Child, children at the latest have their own rights, although in many areas of Germany we still have difficulties with this.

The Federal Constitutional Court has consistently emphasized the right of the child to know his or her own parentage. This right should also be taken into account when regulating surrogacy: it does not matter whether the underlying egg comes from the surrogate mother or not. During pregnancy, genetic material is exchanged between the embryo and the pregnant woman, so that the child is genetically descended from the surrogate mother.

Therefore, we believe that the surrogate mother should play a role in the child's life. Legally this can be resolved, for example, by reduced custody and a right of reciprocal access to the child. The current government plans to extend “minor custody rights” to up to two people in addition to the legal parents. These types of constellations are already common in everyday life, for example with the names of aunts.

In addition to realizing the right to know one's own paternity, such a triadic relationship would also have the advantage of relatively ensuring freedom from responsibility for surrogacy as a clear condition from the beginning. While the concept of anonymous surrogacy always includes the potential for exploitation, the model proposed here is explicitly aimed at people who, for altruistic reasons, want to support couples around them and remain connected to these families in the future.

Clarification of paternity before conception.

As we understand it, in Germany a subsequent control of responsibility and legality is not possible, as in Great Britain: there, the judicial decision to legally recognize the intended parents is only made after it has been decided that everything went correctly during the process. the pregnancy. But this also means that, if in doubt, the newborn will not be assigned to the intended parents.

No, if Germany specifically takes into account the rules on surrogacy, there must be legal clarity about who will assume parenthood before the child is conceived. The fact that a child has two parents from the beginning should not fail due to procedural issues. Now, with the reform of the paternity law, the current federal government is already planning the possibility of a paternity agreement prior to conception, only for the second parental position.

Therefore, transferring the concept to the position of first parent would be immanent. To protect the surrogate mother, the agreement should be challengeable, in the same way that paternity is today. But legal security reinforces the child's situation in any case. In the few discussions we have had in society in recent years, concerns have been expressed that women offer surrogacy due to their financial dependency, thereby harming themselves and ultimately only increasing dependency.

We see this potential particularly when it comes to Eastern European countries. We see the structural asymmetry and therefore the problem when rich Germans use money to fulfill their desire to have children in other countries. And we also see that, despite all the legal advances in gender equality, there are still important structural disadvantages in Germany: gender-specific violence is a clear problem.

Not necessarily altruistic

But significant differences between genders remain a reality when it comes to education, income, and therefore poverty. However, we believe that it is decidedly uncomplex, paternalistic and wrong to restrict the right of peoples to self-determination based on a moral conviction and a privileged position.

Especially since the experience in many other countries also clearly shows that for some women, carrying a child to term, especially for people close to them, is something that can be conceived out of a deep conviction: this is the target group of the regulatory model. that we propose. One thing is clear: we urgently need to reduce social disadvantages between the sexes. But with the same urgency we should respect the right to self-determination.

A paternalism that primarily protects women from “themselves” does not suit us as a society. Regarding the rights and position of women who want to have a child for their loved ones, the commission in charge of the traffic light speaks of “altruistic surrogacy.” The idea behind this is simple: a business sector in which women make money through surrogacy could promote exploitation and should therefore be excluded.

It should be debated whether this idea does justice to the complexity of the reality of life. After all, we live in capitalist societies where dependencies can be left behind, especially with money and one's income, where financial resources can bring freedom, independence and self-confidence.

Beware of speculators

And isn't it also a deeply repulsive thought that women, precisely, who still perform so much unpaid care work, must also perform this unpaid service? In relation to money, however, another issue is much more crucial for us: surrogacy, as it is commonly thought and practiced in some countries, is carried out with medical assistance.

An egg, often donated by a third person, is frozen, then fertilized in vitro and inserted into the surrogate mother. Compared to conventional conception, this entails greater medical risks for all women involved and possibly for the child as well. And this means, above all, exorbitant profits for private companies that are dedicated to reproductive medicine and that benefit from people's desire to have children.

It does not seem safe to us from a medical point of view, but above all morally questionable, to make surrogacy a business model for third parties: in relation to euthanasia, we have long recognized in society that a business environment is diametrically opposed to indispensable prerequisite of free responsibility. . Free will is influenced when market economy companies have a financial interest in a specific decision.

In this context, we urgently advocate for a ban on commercial support for surrogacy to protect freedom from liability. However, this ban should of course not include information, non-profit mediation platforms or even routine examinations during pregnancy. When people agree prenatally and bindingly who will assume legal parenthood.

Whether such an agreement to protect free liability was possibly preceded by the positive vote of an ethics committee. If it is legally clear from the beginning, in the interests of the child, that if paternity is renounced, a small custody for the surrogate mother and a reciprocal right of visitation to the child arises – that the surrogate mother also plays a role Late in life .

If these conditions are clearly regulated by law, then we do not see that the responsibility for a child conceived through private cup donation cannot also be transferred to the intended parents.