Germany's surrogacy ban back in spotlight following top politician’s family expansion

This week’s announcement that German conservative leader Jens Spahn and his husband, journalist Daniel Funke, have become parents has reignited debate over Germany's ban on surrogacy and exposed tensions within Spahn's own Christian Democratic Union (CDU). The news drew significant attention in Berlin seeing surrogacy is prohibited under German law, while the politician’s own party has consistently opposed any move to legalise the practice.

Although German law bans surrogacy within the country, intended parents who use a surrogate abroad do not face criminal prosecution, creating a legal grey area that has become the focus of renewed political debate, as German media outlets have underscored.

Earlier this year, the CDU's Women's Union published a policy paper on egg donation and altruistic surrogacy. While it proposed allowing egg donation in Germany under strict conditions, it argued that surrogacy should remain prohibited.

The paper stated that egg donation should be strictly altruistic and limited to surplus eggs remaining after fertility treatment.

In February, the CDU party congress adopted a resolution from the Women's Union reaffirming its opposition to surrogacy, including altruistic arrangements, arguing that the ban is necessary to prevent "abuse, exploitation and health risks."

Following the announcement that Spahn and Funke had become parents, the Women's Union reiterated its position.

"From the perspective of the Women's Union, there is still no reason to change the current legal situation on surrogacy in Germany."

The group added that this stance reflects the official policy adopted by the CDU.

Criticism from within the party

The sharpest criticism came from the Young Christian Democratic Employees' Association (Junge CDA), the CDU's youth labour wing.

"As a party, we have a foundation of values and stand by the Christian view of humanity," vice-chair Sean Zielinski told the Süddeutsche Zeitung.

He argued that treating pregnancy as a commercial service is incompatible with those values and said politicians should not seek to circumvent German law simply because they have the financial means or personal connections to pursue surrogacy abroad.

Spahn's evolving position

Spahn himself has previously expressed reservations about surrogacy.

Writing in GQ magazine in 2015, he said:

"As a gay man and a Christian, I personally find it very difficult to reconcile myself with the idea of renting a womb."

However, he also acknowledged the emotional complexity of becoming a parent.

"Accepting that I may never become a father naturally requires a great deal of humility. Whether I am capable of that, I do not know."

As Germany's health minister in 2020, Spahn rejected a proposal by the Free Democratic Party (FDP) to partially legalise surrogacy.

In more recent years, however, he has spoken openly about his desire to have children. Earlier this year, during a television talk show, he said that while parenthood was more complicated for him and his husband, it remained something they hoped to achieve.

Anticipating public debate, Spahn and Funke acknowledged in their announcement that the news would not generate only congratulations and said they were willing to answer questions about surrogacy.

Legal grey area

Germany's coalition government established an expert commission on reproductive self-determination in 2023 to examine possible reforms to reproductive medicine laws.

The commission concluded that egg donation could be permitted under tightly regulated conditions but took a much more cautious view of surrogacy.

While noting that children born through surrogacy are not inherently treated as commodities, the experts warned that international surrogacy practices present "considerable risks."

"Certain surrogacy practices can constitute a form of child trafficking," the commission wrote in its final report.

It added that making the transfer of a child conditional on characteristics such as health, disability status or sex "calls into question the intrinsic value of the child and would therefore constitute a violation of human dignity."

The commission recommended maintaining Germany's ban on commercial surrogacy. Although it suggested altruistic surrogacy could be considered under strict safeguards, it warned that even such arrangements carry "potential for circumvention and abuse."

Following the expert paper, no legislative changes took force as the previous coalition government collapsed before reforms could be introduced. Germany's current governing coalition has indicated it has no plans to amend the country's surrogacy laws.

By Nazrin Sadigova