LEGAL CONTROVERSIES IN CROSS-BORDER SURROGACY: A CENTRAL EUROPEAN PERSPECTIVE ON THE RECOGNITION OF LEGAL PARENTHOOD THROUGH SURROGACY ESTABLISHED ABROAD

Abstract

Background: This paper explores the legal field of surrogacy from a Central European perspective, focusing on how countries such as Austria, Germany, and Switzerland address the recognition of parental status established abroad. While the prevailing attitude among Central European states is to prohibit surrogacy within their national laws, there is an increasing tendency to bypass these bans by seeking surrogacy services abroad. This phenomenon, termed reproductive tourism, raises complex legal questions about the recognition of foreign parental status determinations. Methods: The methods used include a comprehensive review of international and autonomous national legal rules as well as a comparative analysis of case law from Central European courts regarding cross-border surrogacy and parenthood recognition. The study examines legal controversies employing Austrian family law as an example to assess highly topical issues arising from surrogacy. It incorporates data from various legal sources, including the Austrian Constitutional Court, the German Federal Court of Justice, the Swiss Federal Supreme Court, and the European Court of Human Rights. Results and conclusions: The findings reveal significant differences between Austria, Germany, and Switzerland regarding the recognition of parental status established by way of surrogacy abroad. While supreme court decisions in these countries tend to prioritise the best interests of the child – often recognising foreign surrogacy arrangements to avoid leaving children without legal parents – their judicial approaches differ considerably. The Austrian Constitutional Court adopts a more inclusive approach by accepting foreign determinations from any authority, such as birth certificates, under the concept of automatic recognition. In contrast, the German and Swiss supreme courts acknowledge only formal court decisions. For cross-border surrogacy cases that do not fulfil this requirement, these countries apply the national law of the child's habitual residence or, as a fallback, the law of the intended parents’ country of origin. Since both German and Swiss law categorically forbid surrogacy, only the genetic father is typically recognised, while the intended mother is directed to adoption. This aligns with the opinion of the ECtHR, which still considers the method of establishing parenthood to be within the sovereignty of a state. This article advocates for a balanced approach that respects both the legal principles of national states and the fundamental rights of children born through an arrangement with a surrogate mother in another country.