Olaf Kosinsky via Wikimedia Commons
Reopening Germany’s Surrogacy Debate
Jack Fornasiero
Program Associate
Jack Fornasiero is the Program Associate at AGI. In his role, he develops and implements grant-funded programs, strategic initiatives, conferences, symposia, and exchanges that strengthen U.S.-German relations. Since joining AGI, he has co-led a multi-year exchange program on LGBTQ+ issues, organized high-profile public events featuring leading transatlantic policymakers and experts, supported AGI’s activities at the Munich Security Conference, and contributed to AGI research and analysis. He oversees AGI’s internship program, mentoring and supervising emerging professionals.
Before joining AGI, Mr. Fornasiero served as a legislative intern in the offices of Senator Kirsten Gillibrand and Congresswoman Susie Lee. Additionally, he completed an Executive Office and Communications Fellowship with Meridian International Center, where he supported cultural exchange programs, diplomatic leadership engagement, and internal communications.
Mr. Fornasiero received a Bachelor of Arts in Political Science and German Studies from Wayne State University with university and departmental honors. He spent his third undergraduate year at Ludwig Maximilian University of Munich through Wayne State University’s Junior Year in Munich program. In addition to his studies in political science, German language, and literature, he has completed coursework in Italian language and European history.
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A recent public revelation about a member of the Christian Democratic Party’s (CDU) leadership having a child through surrogacy unleashed a political storm in the party and has dramatically illuminated a dormant social issue in German politics. Jens Spahn’s surrogacy affair has transpired amidst divided public opinion, an unpopular governing coalition, and a desire by mainstream parties to avoid grappling with reproductive health topics. Moreover, if surrogacy reemerges as a salient electoral issue, the German far-right is positioned strongly to exert disproportionate influence over the public narrative with its clear positioning and aggressive anti-establishment style.
Jens Spahn was one of the most powerful figures in Chancellor Merz’s CDU—leader of the CDU/CSU caucus in the Bundestag, a former Minister of Health, a candidate for the CDU chairmanship in 2018, and one of Germany’s most prominent openly gay politicians. His clear ambition placed him on any short list for future leadership of the CDU. Spahn’s decision to obtain surrogacy services abroad despite Germany’s domestic prohibition, which has been repeatedly reinforced by his party, was a politically risky choice. This decision led members of his own party not only to force him out of his leadership role; it may also create pressure in Germany to reassess Germany’s longstanding prohibition in all cases. Unclear stances from leaders in the current governing coalition, as well as from progressive opposition parties, on the existing legal framework highlight a political gap on a highly sensitive social issue. How German policymakers address the questions raised by Spahn’s ouster, or how they seek to suppress what many perceive as a potentially divisive issue, could either alienate or win over voters.
An Old Legal Framework
Decades-old laws prohibit all forms of surrogacy in Germany, regardless of method or whether it is altruistic or commercial. The Adoptionsvermittlungsgesetz (Adoption Mediation Act) prohibited surrogacy-related mediation in 1976 under Helmut Schmidt’s Social Democratic-Free Democratic (SPD-FDP) coalition government. Following unification in 1990, amendments were passed under Helmut Kohl’s CDU/CSU-FDP coalition, including Section 13c, which expanded these restrictions by explicitly banning the placement and mediation of surrogacy arrangements, with violations punishable by fines or imprisonment. Commercial violations carry the harshest penalties, being viewed widely as a potentially exploitative practice against women. Additional legislation passed in 1990, entitled Embryonenschutzgesetz (Embryo Protection Act), addressed emerging reproductive technology, including in vitro fertilization (IVF). The law strengthened restrictions on surrogacy, imposing additional penalties for violations involving embryo handling during fertility treatment.
Legislation at the time reflected concerns with the rapid emergence of new reproductive technology in the late twentieth century. Lawmakers sought to prevent the risk of exploitation associated with commercial surrogacy and preserve the existing concepts of motherhood and parental rights.
Despite Germany’s domestic prohibition on surrogacy, federal law recognizes citizenship and parental rights through a biological parent. Children born through surrogacy abroad are granted German citizenship if at least one biological parent is a German citizen, and that parent retains legal parental rights. German citizens who obtain surrogacy services abroad face no legal penalties upon returning to Germany. Only providers of surrogacy services within Germany face criminal liability under the existing ban. This legal paradox of domestic prohibition combined with recognition of children born through surrogacy abroad offers a pathway for Germans with the resources to access surrogacy internationally, leaving policymakers divided over whether the existing system represents a necessary protection against exploitation of surrogate mothers or an ineffective restriction that primarily limits access based on economic means.
The Divided Electorate
The German public remains divided on surrogacy. A recent poll found that 39 percent of the electorate supported the federal ban while 41 percent believed the ban to be wrong. Another 21 percent of respondents either did not answer or did not know. The large share of respondents without a stance, combined with similar levels of support and opposition, demonstrates a lack of public consensus. With studies suggesting that one in six people globally struggle with infertility, divided public opinion increases the potential political salience on a controversial issue that affects significant portions of the population.
In the same INSA survey, polling revealed divisions among voters for each of the German political parties. Among supporters of the current federal governing coalition, 47 percent of CDU/CSU voters and 48 percent of SPD voters considered federal prohibition correct.
In contrast to the governing coalition, 42 percent of Alternative for Germany (AfD) voters considered the ban wrong, as did 47 percent of The Left voters. 49 percent of FDP voters thought it was wrong; this party has historically been the most reform-oriented on this issue. In 2025, the FDP was the only centrist party to articulate a clear position advocating for the legalization of altruistic surrogacy. The Greens, Germany’s leading progressive party, are split. 43 percent support the ban, and 43 percent oppose it.
Uneven Political Response
Positions on surrogacy are not individually included in the major party’s platforms. The CDU/CSU has traditionally covered the matter with a focus on family policy and child welfare. Chancellor Merz’s reaction was emblematic: when Spahn first informed Merz privately about his impending fatherhood, Merz reportedly congratulated him and did not raise concerns about the political sensitivity. Once the matter became public and the CDU base expressed disbelief that Spahn would avail himself abroad of a service that was illegal in Germany, Chancellor Merz pressured Spahn to resign and reiterated the existing German law on surrogacy. Family Minister Karin Prien (CDU) and CSU leaders in Bavaria later reaffirmed no change in policy, leaving the legal pathway to obtain surrogacy abroad open.
Whether Germany liberalizes or tightens its surrogacy laws may depend less on public opinion than on which political actors succeed in defining the issue.
The CDU leadership has been cautious about revisiting its position on surrogacy, preferring to reaffirm existing law rather than open a broader debate over changes to reproductive policy. Following the CDU’s most recent party conference in Stuttgart, the party’s women’s wing (Frauen Union) has become the party organization with the clearest public position on surrogacy. Because surrogacy is absent from the party’s broader family and reproductive platform, the CDU leadership has largely reacted to events rather than setting the terms of the debate. This provides the far-right AfD, the CDU’s primary opponent for votes right-of-center, with space to define the issue on its own terms by addressing the legal pathway for Germans seeking surrogacy abroad.
The Social Democratic Party began a process to review reproductive health issues under Chancellor Olaf Scholz (2021-2025), when the SPD-Greens-FDP coalition convened an interdisciplinary expert commission to address ethical questions—including surrogacy. While recommending a fundamental ban, the commission also suggested altruistic surrogacy under strict conditions, but no legal changes were initiated. Since then, the SPD has largely remained quiet on surrogacy. The 2025 platform addressed the inequality in same-sex parent adoption rights and advocated for federal law modernization. Following Spahn’s announcement, SPD Vice Chancellor and Minister of Finance Lars Klingbeil offered congratulatory remarks, staying out of the political fray. Some SPD figures argue that existing legislation should be reconsidered, but they have not been able to turn the issue to their favor.
Among mainstream parties, the FDP has been the only party to advocate for clear reform. Since before the 2025 federal elections, the party has supported legalizing altruistic surrogacy. If surrogacy becomes a prominent issue in future federal election cycles, the FDP is better positioned to distinguish itself from both the governing coalition and the far-right by framing national debate around personal liberties. While currently outside the Bundestag, the FDP is the only mainstream party entering any future debate with a coherent policy to change the existing legal framework.
Following the Spahn affair, Green leaders raised concerns about equity and the potential for exploitation in commercial surrogacy. At the same time, surrogacy has been framed by some advocates as an LGBTQ+ equality issue because of the parenthood opportunities it can provide to same-sex couples. This creates a potential tension for the Greens, whose commitment to equality and family diversity could align them with arguments for expanding access, while concerns for exploitation and commercialization push the party toward a more cautious approach. Despite this tension, the party has not moved toward a clear position in favor of liberalization of the existing laws.
Fuel for the Far-Right
The Alternative for Germany has been the most outspoken on this issue, describing surrogacy as “the commercialization of a woman’s womb” and opposing any legalization of the practice, despite the party’s pronatalist positioning. The AfD introduced legislation that would prevent any potential legalization of altruistic surrogacy and has demonstrated consensus on furthering Germany’s surrogacy prohibition. This has included legislation, modeled on the Italian approach, aimed at closing the legal gap that allows for German citizens to receive surrogacy services abroad. These attempts at leading decision-making on surrogacy law in Germany are rooted in the AfD’s platform, insisting on what it views as traditional values and protection of children.
AfD co-leader Alice Weidel additionally framed her response to the Spahn incident with adherence to German law and criticized circumvention of domestic prohibition. Far-right leaders have a clear policy stance to offer voters. In contrast with the dissembling of the current coalition, the AfD has greater opportunity to frame the debate in anti-elite terms by highlighting the existing pathway as being only available to the very wealthy and accusing a powerful CDU figure, Jens Spahn, of hypocrisy.
Who Will Define the Debate
Across Europe, commercial surrogacy is widely prohibited among member states. States like Ireland, Greece, Cyprus, and Portugal have permitted or debated altruistic forms in narrow cases. This suggests that Germany’s debate is not unique and that public opinion across Europe is widely unsettled.
Whether Germany liberalizes or tightens its surrogacy laws may depend less on public opinion than on which political actors succeed in defining the issue. As long as the major governing parties remain divided and seek to avoid reassessing Germany’s current gaps in the surrogacy framework, the AfD’s clear policy gives it a disproportionate opportunity to shape the terms of the national debate. Whether it succeeds in changing the legal framework may be secondary for the party, if its anti-establishment message gains traction with other portions of the population that feel strongly against surrogacy.
