Opinion. Surrogacy is a "humiliation of dignity" (but only if you are poor). What the German case of the leader of the CDU faction teaches us

Context. The chairman of the ruling CDU/CSU faction in the Bundestag, Jens Spahn, and his husband Daniel Funke announced that they had a son, Georg. The couple resorted to surrogacy services. In Germany, surrogacy is prohibited, so the child was carried and born by a woman in the United States. Both fathers promise that she will participate in the boy's life: "Now she is practically part of the family and will accompany Georg on his life path".

The news that the head of the CDU/CSU faction in the Bundestag, Jens Spahn, and his husband became parents thanks to a surrogate mother, in itself would hardly deserve much discussion. People want children, look for legal ways to become parents, and this is not unusual.

The noise arose for another reason.

Jens Spahn is one of the most influential politicians in the CDU. A party that has been consistently opposing the legalization of surrogacy in Germany for many years. Moreover, the CDU has repeatedly stated that the current ban must be maintained, and commercial surrogacy is incompatible with human dignity.

At the same time, Spahn himself took advantage of this opportunity - outside Germany, where such a practice is allowed.

Formally, there is no violation of the law here. German law prohibits the organization of surrogacy within the country, but does not prohibit citizens from using such services abroad.

However, politics rarely ends with the letter of the law.

Here arises a question that is now being asked not only by Spahn's political opponents, but also by many German journalists: if a politician is convinced that surrogacy is such an unethical practice that it should be banned for the entire country, why does he consider it permissible to use this practice personally?

Why is surrogacy prohibited in Germany?

Germany is one of the few countries in Europe where surrogacy remains completely prohibited. The ban has been in effect since 1991 and is enshrined in several laws at once.

The arguments of the supporters of the ban have not changed much in recent decades.

Firstly, German law is based on the principle that a woman should not become a "means" for the birth of a child. The state fears the commercialization of pregnancy, when bearing children turns into a service, and the woman's body becomes the object of the contract.

Secondly, much attention is paid to the rights of the child himself. In the German legal system, the mother is automatically considered to be the woman who has given birth to the child. Surrogacy destroys this principle and creates complex legal questions: who is the mother from birth, who makes decisions about the child, and what to do if one of the parties changes its mind.

There is also a historical context. After World War II, German legislation in the field of medicine and bioethics became one of the most cautious in Europe. Any technology that can be perceived as the use of a human being as a means to an end has traditionally been the subject of particularly harsh debate.

That is why the ban applies not only to commercial, but also to the so-called "altruistic" surrogacy, when a woman does not make a profit and agrees to help relatives or friends.

At the same time, the ban does not mean that German citizens cannot take advantage of surrogacy abroad. Many couples, including same-sex couples, travel to the U.S., Canada, or other countries where the practice is allowed. After the birth of a child, they have to go through a separate legal procedure for recognizing parenthood in Germany.

A ban that doesn't work for everyone

In practice, the German ban does not work as unambiguously as it may seem.

If a person does not have money, surrogacy is really prohibited for him. There are almost no other options.

If there is money, the ban turns into a logistical problem. It is enough to go to a country where surrogacy is allowed, undergo the procedure there, and then apply for recognition of parenthood in Germany.

Formally, the German law remains unbroken.

In fact, a situation arises in which the same ban acts differently depending on the financial capabilities of a person.

That is why the story of Jens Spahn caused such a reaction.

It's not just that he took advantage of surrogacy. Many politicians would probably do the same if they were in his place.

The question is different.

Span is not just a private person. He heads the parliamentary faction of the party, which considers surrogacy so unethical that it opposes its legalization in Germany.

It turns out to be a strange design. The state says to its citizens: "We will not allow you to do this here because we think it is wrong." But if you are wealthy enough to do it in another country, you are welcome. Moreover, the state then recognizes the family relations that have arisen.

Such an approach inevitably raises the question: if a practice is so immoral that it cannot be allowed domestically, why does the state recognize its results obtained abroad?

And this is no longer a dispute about surrogacy.

This is a dispute about the consistency of state policy.

Because a ban that only wealthy people can circumvent inevitably begins to look not like a moral principle, but like a privilege for those who have enough money. That is why Spahn's story turned out to be so inconvenient for the CDU: it clearly showed the contradiction that existed in German law long before the news broke.

✦ This article is published as written by the author. The opinions, assessments, and conclusions expressed in the text are those of the author and may not reflect the position of the Doberman.media editorial board. The editorial board is not responsible for the author’s interpretations, statements, or conclusions.