On Monday, the German Federal Court (BGH) published a ruling rejecting the man’s claim to fatherhood over the embryos, which were created and stored in a Californian surrogacy clinic.
The contested embryos originated when the German man conceived two daughters with the help of a donated ova and a surrogate mother in California.
The man, who is in a civil partnership, has three surrogate children including another child, who was conceived through surrogacy in India.
The plaintiff wanted to have his fatherhood of the embryos legally guaranteed as he wanted to “bring them [the embryos] to birth”, arguing that he should have the equivalent of “custody” or at least “guardianship” over them, reports the Süddeutsche Zeitung (SZ).
However, the court ruled against him, stating that under German law fatherhood only comes into effect once a child is born.
The case was judged on the grounds of German law instead of U.S. law, because the man is a German citizen.
Surrogacy laws vary from country to country. It is legal in countries such as the United Kingdom and Denmark, so long as the surrogate mother is not remunerated. Commercial surrogacy – when the surrogate mother is paid to carry a child – is legal in some nations including Ukraine, and certain states in the U.S.
All forms of surrogacy are currently prohibited in the Bundesrepublik, leading many Germans such as the claimant to look abroad for other options.
According to the SZ, the nine embryos are currently in cryoconservation, the process of cooling and storing cells, tissues, or organs at very low temperatures to maintain their viability.
After the Federal Court ruling it is now unclear whether the original egg donor will have ultimate legal responsibility for the embryos.