Germany is said to have one of the most restrictive legislation in the area of assisted reproductive technology (ART) treatments. In contrast to the UK, both oocyte donation and surrogacy are prohibited by the Embryo Protection Act. PGD (preimplantation genetic diagnosis) has only become permissible as of July this year — it can now be carried out if the child will be born with a severe genetic disease, or if the embryo is so severely impaired that the pregnancy will result in a miscarriage or stillbirth. Although the treatment of lesbian and single women is not prohibited by legislation, few clinics provide fertility service to these groups as the donor is not sufficiently protected from paternity if there is not a man in the recipient family who will accept legal paternity.
This situation has led to an increasing number of individuals and couples travelling abroad for ART. Spain as well as Eastern European countries are typical destinations for couples undergoing oocyte donation; the Ukraine, India and the US are destinations for surrogacy; and there is an ongoing stream of single and lesbian women travelling to Denmark for donor treatment. In many cases there are no legal complications. German couples undergoing oocyte donation abroad are covered by German legislation which stipulates, as in most countries, that the women giving birth to the child is the legal mother and her male partner the legal father. In the case of lesbian parents, the partner of the legal mother can adopt the child after birth if the couple is in a civil relationship. Children of single women grow up with one parent only. There are, however, some areas that are controversial and legally challenging.
In recent years, there have been numerous debates surrounding the right of donor-conceived children to have access information about their biological origins. Although there is no specific legislation in this area in Germany, based on case law and legislation in related areas it is assumed that children born as a result of donor insemination enjoy this right, and donors are informed accordingly. However, children conceived abroad may not have this privilege. In Spain, legislation provides for all donors to remain anonymous; in Denmark, parents can choose between identifiable and anonymous donors; and in several Eastern European countries, there is no legislation — common practice is for donors to remain anonymous. As in the UK, this situation results in two groups of offspring: those conceived abroad, whose rights may be infringed, and those conceived in Germany, who have access to such information.
Surrogacy presents more complex issues. There have been two cases of surrogacy in India where German parents were unable to travel home with their children. In both cases, the children were conceived with the parents' gametes and the surrogate had given them up for adoption. As the children were born to an Indian surrogate, according to German legislation, they were Indian nationals. The German embassy declined to grant the children German nationality despite the fact the Indian government declared them to be German — as a result, the children where stateless. In 2010, after approximately two years, the first case was settled — the German embassy issued visas for the twins, and the parents were able to bring them home. The second case is still ongoing. The German Federal Foreign Office's online statement says that children conceived by surrogacy do not have the right to a German passport and are therefore denied the right to enter Germany (1).
During recent months, there have been lively and controversial public debates and discussions surrounding PGD. Many professionals and lay people appreciated the way these discussions were conducted without ideological blinkers. However, it was politicians who had the dominant voice; those of professional and patient organisations were less audible in these public discussions.
There have not been similar public discussions surrounding cross border reproductive services (CBRS), although we assume that CBRS is much more widespread than PGD. However, there have been several critical reports in the media, especially relating to the potential exploitation of donors and surrogates, as well as the commercialisation in this area. If we are to extrapolate from the European Society of Human Reproduction and Embryology (ESHRE) study published in 2010 (2), approximately 1,500 to 1,900 German couples travel abroad every year, whereas the number of couples taking advantage of PGD is thought to be around 200 per year.
As in many countries, we need to better understand the extent of CBRS in Germany, and the needs of the couples involved, to mitigate the potential exploitation of donors and surrogates, and to raise awareness of the needs of the resulting children. CBRS is an area that would greatly benefit from low-threshold, minimum standards of care that include safe treatment for all involved, unbiased legal advice and comprehensive pre- and post-treatment counselling for recipients, donors, surrogates and the resulting families.