Germany is abuzz over CDU parliamentarian Jens Spahn's fall from grace. This place loves a political scandal, and a conservative politician living by a double standard is an easy target. But by focusing on Spahn, society has failed to recognise the necessity of reforms.
To summarise: After shaking off the fallout of numerous messes such as a pandemic-era mask procurement scandal, something finally stuck to Spahn, forcing him from his position as Union parliamentary group leader and triggering a cabinet reshuffle.
The issue? Despite his party's line of keeping surrogacy and egg donation illegal in Germany, Spahn and his husband chose to avail themselves of the legal industry in the United States. The conservative backlash came as no surprise.
More disappointing is the smug response from other supposedly progressive sectors of society.
Commentators' favourite talking points revolve around paternalistically 'protecting' women and the Grundgesetz-anchored tenet of human dignity (ignoring blatant inconsistencies between laws limiting women's choices and other laws around medical studies and sperm donation). While drawing false equivalencies and dismissing women's agency, these voices also throw queer couples and other would-be parents under the bus.
Speaking as a woman and a dual US-German citizen who has legally donated eggs with compensation in the United States: Germany's laws restricting women's rights to fully control their own reproductive systems are the true double standard here. The bans on surrogacy and egg donation are sexist nonsense and should be abolished.
The regulated reproductive industry is not selling babies
Let's review the facts. While donors and surrogates in the US are compensated for the disruption of the procedure, there is a very clear legal distinction here: nobody is selling body parts or babies.
Meanwhile in Germany, you can sign up as a test subject in a medical study that may last months and have unknown side effects, while receiving thousands of euros. You can donate plasma and even sperm cells repeatedly for financial compensation.
There's no rational reason to treat egg cells or the female reproductive system in general as somehow mystical and subject to different moral and legal standards.
Germany takes care to define these compensations as compensatory payments (Aufwandsentschädigung) – mere considerations for inconvenience and bother, not money for tissue and bodily interventions directly. Which is exactly the same way surrogacy is handled in the US, albeit for larger sums. Commentators are quick to throw around accusations of organ trafficking, when it's the same legal construct they have in Germany – just less stingy.
Stop conflating US surrogates with trafficking victims
What critics get right: Globally, there are many instances in which surrogacy and egg donation are vulnerable to bad actors. But cases of desperate, exploited women and trafficking rings in Eastern Europe are precisely why countries with strong regulations and human rights laws should decriminalise and heavily regulate the industry, rather than leaving it to jurisdictions lacking in oversight or legal recourse for women.
What critics seem not to understand: Spahn's choice has nothing to do with those trafficking rings.
He is guilty of not living up to his party's platform, and so they have de-platformed him. He is not, in my opinion, guilty of anything else in this particular matter.
The agencies in the United States that recruit surrogates and egg donors are highly selective and screen extensively, including full psychological batteries exploring personality and motivations.
The recruitment process for me as an egg donor took approximately a year. They do not want desperate donors and surrogates under financial duress.
The German op-ed writer who sanctimoniously wrung his hands imagining the US surrogate as an economic refugee showing up to the German border in dire straits might do well to learn a bit more about the particulars of the industry before filling in the blanks with fantasy.
Of course, not everyone has Spahn's financial resources. Contracting with an agency in the US to cover all expenses of an egg donor and surrogate often costs anywhere from $150,000 to upwards of $200,000.
Spahn makes roughly that in a year, with a salary financed by taxpayers. A further source of public anger, maybe.
But it's a classic move for the Neidgesellschaft to get hung up on the begrudging, instead of asking: How can we make surrogacy and egg donation legal, well-regulated and affordable for average people in Germany with some support from standard health insurance, like IVF in general, rather than leaving it the province of the rich in America and the unscrupulous in cheaper markets?
Countries that pretend to the mantle of human rights and progressive values should not leave their own citizens without ethical, financially accessible choices.
Not liking Spahn is not an excuse to betray progressive values
This debate is about so much more than one man's political fortunes. I don't believe that a gay couple entering into a legal agreement with a woman to carry their baby to term is wrong – in any sense. I think all of the involved people should have the freedom and self-determination to make that choice, with full protections and regulations.
To the gleeful hordes: It's really not a good look to be dumping on two gay men who just wanted to have a baby.
Should their only choice be adoption or gritting their teeth and knocking up a saintly acquaintance without medical intervention? Or entering into a handshake IVF arrangement with a German woman who would then co-parent the baby, without legal clarity? Sounds pretty backwards for allegedly progressive and feminist voices to act as judge and jury over which avenues to parenthood should be available to queer couples, not to mention straight couples with fertility problems.
And for the record, those who claim the label of feminist while sneering at the institution of surrogacy as reducing women to Brutkästen (incubators) – despite many surrogates feeling deeply fulfilled and empowered by their choice – those women are no true allies to other women.
It's the sex work debate all over again
Let's push for gender equality and uplifting vulnerable economic classes, for development, education and paths for economic migration, for social safety nets, for legal recourse, for regulation, yes.
Nobody should be driven to the reproductive industries out of desperation. But what gives a writer with no lived experience on either side of that equation the arrogance to speak for all women? To degrade and dismiss women's choices by insisting that the procedure itself is synonymous with degradation?
It's the same internal debate the fragmented feminist movement keeps having over sex work: Decriminalise and regulate, accompanied by a strengthened social safety net, versus ban outright.
Perhaps there is no reconciliation possible between deeply held convictions, but I'm tired of a handful of women claiming the moral high ground to speak for all women while advocating for the restriction of our choices, rather than for better base conditions and self-determination for all.
Experts call for reform, but political momentum has stalled
Before its abrupt dissolution, the previous traffic-light coalition, made up of the SPD, Greens and FDP, was weighing options to decriminalise both surrogacy and egg donation. Some progressive politicians remain in favour of reform, but without a legislative majority, the debate has once again lost momentum.
Outside of conservative power circles and the masters of lazy-take punditry, experts in civil society have long highlighted the untenability of the current bans, which have their legal roots in the Act for the Protection of Embryos (Embryonenschutzgesetz).
In 2019, scientists of the Leopoldina institution, which advises German policymakers, spoke in favour of legalising egg donation. The German Medical Association also endorsed reform, as did Helmut Frister, chair of the German Ethics Council.
The overall inconsistencies of the Embryonenschutzgesetz are legion - in the treatment of gametes and in hypocrisies relating to stem cells, suggesting that sooner or later, the law must reform or fall to challenge through the courts.
German constitutional law expert Prof. Dr. Frauke Brosius-Gersdorf, who backs legalising surrogacy in Germany, also denounced the current ban as paternalistic and incompatible with the Basic Law.
In a Zeit interview, she emphasised that it is essential to ensure that women are informed about all risks and not impelled by financial need, but that the state may not protect them from themselves against their own explicit wishes.
Choices, not conservatorship
There's only one enlightened, legally consistent path for Germany on this issue: The country should overturn the ban on surrogacy, so that women have control of their bodies and people seeking to become parents can do so in an ethical, well-regulated market closer to home.
And Germany should legalise the Eizellspende, because allowing sperm donation while banning the donation of eggs (they're both gametes!) is even more sexist and silly than the surrogacy ban.
The fig leaf of protecting women is too small and tired to cover up the hypocritical restriction of our choices.
It's time to show true allyship to queer families, other intended parents facing reproductive struggles, and those with the capacity and the desire to help them.
