She didn’t really make $500K.
I’m usually not one to say “I told you so.” That’s because people can sometimes get defensive when you’re right all the time. But in a recent case involving surrogate German parents, I will point out that I was totally right when I discussed this case in 2017.
You may remember that last year, in a terrible and confusing decision, a German court decided not to recognize the legal parent-child relationship between twin babies and their parents — because the children were born in the United States via surrogacy. The court was offended that the couple purposely circumvented German anti-surrogacy law by going to the United States, and misread the factual record to “conclude” that the couple had paid the gestational carrier (surrogate) $500,000. But even before Germany moved from the Deutschmark to the Euro, that would be a lot of money. And way above market for a surrogacy contract. For that reason, I pointed out in 2017 that the purported amount was highly unlikely to be accurate.
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Number Translations Matter. Just recently, the case finally made its way to the German Supreme Court. Last week, that Court issued a decision that went over better than an ice-cold bier with a soft German pretzel during Oktoberfest. First, the Court clarified the facts of the case. The surrogate was not, in fact, paid $500,000. Instead, she received the much more modest sum of $23,000, paid out in monthly increments throughout the pregnancy. The surrogate also received compensation upon confirmation of pregnancy — $300 for a singleton and $500 for twins. The Court strangely believed that $500 confirmation fee actually equated to $500,000. Although I can’t explain how the mistake was made, I’m speculating that it has something to with the European habit of using commas where periods should be in long numbers. But even then, who knows where the extra zero came from.
Full Reversal. Aside from correcting the irritating factual error, the German Supreme Court also completely reversed the lower court on its reading of the law. Given that the opinion is in German, and Google translate can only get you so far, I send my thanks to Catherine McGowan, an assisted reproductive technology lawyer with International Reproductive Law Group. Born and raised in Germany and now practicing in California, she walked me through the decision.
Recognizing U.S. Court Orders. One big reversal was the comity afforded to court orders and birth certificates issued by other jurisdictions like the United States. The lower court had claimed it had no obligation to recognize such legal documents issued by a foreign jurisdiction. By contrast, the German Supreme Court disagreed entirely, finding that German law actually requires the recognition of foreign orders as long as they are not against public policy. They would, of course, be against public policy if a surrogate’s dignity were violated, such as if she had been forced to give up the children through physical force. But in this case, like most, the surrogate was not related to the children, and had clearly entered the surrogacy arrangement, as well as the U.S. court process recognizing the German parents as legal parents of the twins, voluntarily.
What About The Children? More importantly, rather than getting bogged down in the intricate details involving the intended parents, the German Supreme Court focused on the rights of the children. The Court found that it was in the best interests of the twins to have an established legal parent-child relationship. Just having the parents as legal guardians was not sufficient (as the lower court tried to claim) for many reasons. These included a clear line of custody, child support, residency, and inheritance, to name just a few. Moreover, the Court noted that a child is entitled to parents no matter how he or she is conceived. A child cannot determine whether to be born by surrogacy, or more traditional methods, but should not be denied a legal parent by being born by the newer method.
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This ruling is really a big deal. For one, McGowan points out that this is the first time the German Supreme Court has ruled on a surrogacy case for a straight couple, involving an intended mother. But more importantly, the effect of the decision is that the legal pathway has now been fortified for German couples hoping to grow their families by surrogacy. And to be able to bring their children home to Germany, while being assured of the same legal protections as all other families in Germany. Dankeschoen, German Supreme Court! Congrats to the newly protected family. And best wishes to all those German couples who now have renewed hope in their family building options.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].