surrogacy
noun · Leihmutterschaft
Leihmutterschaft is prohibited in Germany: the doctor who performs it is criminally liable, § 1 Abs. 1 Nr. 7 ESchG, and mediating it is an offence, § 13c AdVermiG. Under § 1591 BGB the woman who gives birth is the legal mother, so the intended mother must adopt.
Which translation, when
Why
Surrogacy is Leihmutterschaft, and the translation has to carry a prohibition. In Germany the medical act is criminal: § 1 Abs. 1 Nr. 7 ESchG punishes the doctor who inseminates or transfers an embryo to a woman prepared to give up the child, and § 13c AdVermiG forbids arranging surrogacy, with a penalty in § 14b. The surrogate and the intended parents are themselves left unpunished, but a surrogacy contract is void, and rendering it as an enforceable Leihmutterschaftsvertrag imports an effect German law denies. The deeper rule is § 1591 BGB: the mother of a child is the woman who gave birth to it, and that cannot be displaced by any arrangement, so under German law the surrogate is the legal mother even where a foreign birth certificate names the intended mother. The intended mother’s route to legal motherhood is then usually adoption, §§ 1741 ff. BGB, unless a foreign parentage decision is recognised. England reaches a similar starting point by a different road: the surrogate is the legal mother at birth and the arrangement is unenforceable, Surrogacy Arrangements Act 1985, but the intended parents can take a parental order, Human Fertilisation and Embryology Act 2008, a transfer mechanism German law does not have. So the words match while the legality, the criminal exposure and the route to parenthood do not.
Typical mistakes
- Surrogacy is prohibited in Germany: the doctor is criminally liable, § 1 Abs. 1 Nr. 7 ESchG, and mediation is an offence, § 13c AdVermiG, so a surrogacy contract is void and cannot be rendered as an enforceable Leihmutterschaftsvertrag.
- Under § 1591 BGB the birth mother is the legal mother whatever the genetics or a foreign birth certificate, so the intended mother is not the legal mother and must adopt, §§ 1741 ff. BGB.
- England has a parental order to transfer parenthood, Human Fertilisation and Embryology Act 2008, but Germany has no such mechanism, so mapping the English route onto the German one overstates what is available.
What matters
Cross-border parentage papers after a foreign surrogacy need the German position stated plainly: under § 1591 BGB the surrogate is the legal mother, the arrangement is void, and the intended mother’s route is adoption, §§ 1741 ff. BGB, not recognition of the foreign birth record. A contract translated as an enforceable Leihmutterschaftsvertrag misstates a document that in Germany has no such force.
What the machine misses
Surrogacy is rendered Leihmutterschaft, and the word is right while the legal reality is not. A machine can present a surrogacy contract as an enforceable Leihmutterschaftsvertrag, when in Germany the medical act is criminal, § 1 Abs. 1 Nr. 7 ESchG, and the contract is void. It also loses § 1591 BGB, under which the birth mother is the legal mother, so a translated document treating the intended mother as the legal mother, or the foreign birth certificate as conclusive, misstates who the parent is.
Examples
| a surrogacy arrangement | eine Leihmutterschaftsvereinbarung |
| the surrogate mother | die Leihmutter |
| the intended parents | die Wunscheltern |
| a parental order | eine Elternschaftsanordnung |