Top of page

Article Germany: Expert Commission Recommends Reform of Laws on Abortion, Egg Donation and Surrogacy

On April 15, 2024, a German expert commission presented its final report on reforms of laws relating to abortion, oocyte (egg) donation, and surrogacy. It recommended decriminalization of abortion in the early stages of pregnancy, reevaluation of existing law governing abortion in later stages, legalizing but strictly regulating egg donation, and keeping surrogacy illegal or making it legal only in limited circumstances.  

Background

The Commission on Reproductive Self-Determination and Reproductive Medicine was appointed by the government in 2023 to study and make recommendations on the regulation of abortion and whether egg donation and surrogacy should be legalized in Germany. It was composed of experts in medicine, psychology, sociology, health, ethics, and law.

The commission was split in two groups. One group was tasked with examining whether and how abortion might be regulated outside of the German Criminal Code. The other was to examine whether oocyte donation and surrogate motherhood might be legalized. The report does not address regulation of in vitro fertilization (IVF).

The commission’s report will not itself result in a change to existing law, but rather will serve as a basis for a broad political and social debate, and will be evaluated by the federal ministry of health to inform proposals for changes to relevant laws.

Current Law on Abortion

While abortion is available and not punished in specified circumstances, abortion is nominally illegal under the German Criminal Code (Strafgesetzbuch, StBG). Section 218, paragraph 1 states that abortion is generally prohibited and penalized, both for the person performing the abortion and the pregnant woman.

A woman may obtain an abortion by a doctor within 12 weeks of conception if they obtain counseling at least three days before the procedure. (§ 218a, para. 1.) Even though there is no punishment, the abortion is deemed illegal. An abortion considered legal only if there is a medical-social indication, such as danger to the life or health of the pregnant woman, or a criminological indication, such as rape. (§ 218a, para. 2.) A woman may obtain an abortion within 22 weeks when the pregnant woman has had counseling and a court order discharges the doctor because the woman was in “exceptional distress” at the time of the abortion. (§ 218a, para. 4.)

Commission Recommendations on Abortion

As German criminal law generally classifies abortion as unlawful regardless of the stage of pregnancy, the expert commission proposed that the legislature should legalize abortions in the early stages of pregnancy and exempt them from punishment. (Report, paras. 8.1, 8.1.1, at 405.) The commission did not define a specific period of time that can be considered the “early stage” of pregnancy, but it suggested it should last twelve weeks after implantation of the embryo. (Paras. 5.3.1.1, 8.1, 8.1.1, at 252, 405.) The commission’s main argument is that in the early stages of pregnancy, the mother’s rights protected by Germany’s Basic Law such as life, physical integrity and personality outweigh the embryo’s right to life, and that in later stages the appropriate level of protection of a fetus’s right to life increases with gestational development and as the anticipated birth date gets closer. (Paras. 5.4.2.4, 5.4.3.1, at 260-261.)

Regarding the middle stages of pregnancy, the commission proposed that the legislature should determine whether abortion should be punishable at all. (Para. 8.2.3, at 412.)

For the final stages of pregnancy, which begin when the fetus is capable of surviving outside the uterus, the commission proposed that the legislature should generally not allow abortion. (Para. 9.3.1, at 422.) In the opinion of the commission, the fetus’s right to life generally outweighs the mother’s right to abortion in the final stages of pregnancy due to the limited remaining duration of the pregnancy. (Para. 5.4.3.2, at 261.)

However, the commission pointed out that while criminalization of late-stage abortion may be appropriate, the legislature could consider means of regulation other than criminal punishment. (Para. 8.2.3, at 412.) It further emphasized that the legislature should provide exemptions from criminalizing abortion if the continuation of the pregnancy is “unreasonable” for the pregnant woman, for example when the pregnant woman’s health or life are in danger or in cases of rape. (Paras. 8.1.2.2, 8.1.2.3, 8.2.3, at 406-408, 412.)

More generally, the commission suggested that abortion in the middle and late stages of the pregnancy should be lawful and exempt from punishment in circumstances where the continuation of the pregnancy may be unreasonable for the pregnant woman in comparison to the interests of the unborn child. (Para. 8.1.2 at 405-406.) The commission did not define all such circumstances, but said the legislature should consider situations when it would be unreasonable to require a woman to continue a pregnancy, including because of medical-social and criminological indications. (Para. 8.1.2.1, 8.1.2.2, 8.1.2.3, at 406-408.)

Current Law on Oocyte Donation and Surrogacy  

In oocyte donation, the egg cell of the female donor is artificially fertilized with sperm from the partner or father and implanted in the recipient. In Germany, only a woman’s own artificially fertilized oocyte may be implanted. According to section 1 of the Embryo Protection Act (Embryonenschutzgesetz, ESchG), the transfer of a foreign unfertilized egg to a woman or the artificial fertilization of an egg cell for a purpose other than the establishment of a pregnancy in the woman from whom the oocyte originated is prohibited and a doctor who performs such transfer is subject to penalty. (ESchG § 1, paras. 1-2.)

Surrogacy is illegal in Germany. The German Civil Code (Bürgerliches Gesetzbuch, BGB) provides that the mother of a child is the woman who gave birth to it. (BGB § 1591.) The Embryo Protection Act provides that it is a criminal offense to perform artificial insemination or transfer a human embryo to a woman who is prepared to leave her child permanently to a third party after giving birth. (ESchG § 1, para. 1, no. 7.) Furthermore, the Adoption Placement Act (Adoptionsvermittlungsgesetz, AdVermiG) states that “the bringing together of people who will adopt or otherwise take permanent care of a child conceived via surrogacy (purchasing parents) with a woman who agrees to act as a surrogate” is prohibited and punishable by a term of imprisonment of one year or a fine. (AdVermiG §§ 13a, 13b, 13c.)

Commission Recommendations on Oocyte Donation and Surrogacy

The commission proposed that oocyte donation should be legalized under circumstances that protect the donor, especially her freedom of choice, and guarantee the welfare of the child. (Report, para. 3.1, at 604.) The commission listed the following circumstances in which egg donation could be made legal:

(1) The oocytes have been removed from a woman for her own reproductive purposes, but she no longer wishes to use them for herself.
(2) The oocytes have been retrieved and frozen for medical or social reasons, but the woman no longer needs them for her own reproductive purposes.
(3) Impregnated oocytes that have been produced during treatment are no longer required for a pregnancy in the woman from whom they originate.
(4) The oocytes have been retrieved from a woman in a lesbian relationship for her partner. (Para. 3.1(I), at 602.)


The commission additionally proposed legalizing egg donation following hormonal stimulation when the donation is for the sole benefit of the recipient. (Para. 3.1(II), at 604-605.)

Due to ethical and social considerations, the commission recommended that the legislature either continue to prohibit altruistic surrogacy or allow it only under strict protections. (Paras. 2.1.2.3.3, 2.1.2.3.4.3, 2.2.1.5., 3.2, at. 564, 568, 576, 604.) If allowed, strict conditions would be needed to protect the surrogate mother and the child. (Para. 3.1, at 602-603.) Subject to such strict conditions, the legislature could consider allowing altruistic surrogacy in cases where

(1) a close relationship of friendship or kinship exists between the surrogate mother and the intended parents; or

(2) the surrogate mother and intended parents are required to get to know each other with the aim of concluding a surrogacy agreement in which they acknowledge that surrogacy creates a relationship between the parties that extend beyond the birth of the child. (Para. 3.2, at 604.)

Prepared by Eva Dauke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Read more Global Legal Monitor articles.

 

About this Item

Title

  • Germany: Expert Commission Recommends Reform of Laws on Abortion, Egg Donation and Surrogacy

Online Format

  • web page

Rights & Access

Publications of the Library of Congress are works of the United States Government as defined in the United States Code 17 U.S.C. §105 and therefore are not subject to copyright and are free to use and reuse.  The Library of Congress has no objection to the international use and reuse of Library U.S. Government works on loc.gov. These works are also available for worldwide use and reuse under CC0 1.0 Universal. 

More about Copyright and other Restrictions.

For guidance about compiling full citations consult Citing Primary Sources.

Credit Line: Law Library of Congress

Cite This Item

Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate.

Chicago citation style:

Gesley, Jenny. Germany: Expert Commission Recommends Reform of Laws on Abortion, Egg Donation and Surrogacy. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-05-09/germany-expert-commission-recommends-reform-of-laws-on-abortion-egg-donation-and-surrogacy/.

APA citation style:

Gesley, J. (2024) Germany: Expert Commission Recommends Reform of Laws on Abortion, Egg Donation and Surrogacy. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-05-09/germany-expert-commission-recommends-reform-of-laws-on-abortion-egg-donation-and-surrogacy/.

MLA citation style:

Gesley, Jenny. Germany: Expert Commission Recommends Reform of Laws on Abortion, Egg Donation and Surrogacy. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-05-09/germany-expert-commission-recommends-reform-of-laws-on-abortion-egg-donation-and-surrogacy/>.