A senior German politician has been forced to resign after entering into a commercial surrogacy arrangement in the United States. In Ireland, he would probably be given a soft interview on The Late Late Show for doing the same thing, because our attitude to surrogacy is probably the most liberal in Europe.

The politician, Jens Spahn, is a member of the Christian Democratic Union.

Recently, Spahn and his male partner announced that they had become parents to a child born to a surrogate mother in the United States. The problem was not simply that surrogacy is prohibited in Germany. Spahn had previously defended that prohibition, while his party, the CDU, had reaffirmed its opposition only recently. Following a strong political backlash and accusations of hypocrisy and a “double standard”, he resigned as leader of the CDU/CSU (Christian Social Union) parliamentary group.

The German Social Democrats are also opposed to commercial surrogacy and German law prohibits both commercial and “altruistic” surrogacy and also prohibits agencies from arranging surrogate pregnancies abroad. A surrogacy contract is not legally enforceable, and under German law, the woman who gives birth is considered the child’s mother. However, commissioning adults are generally not prosecuted for entering into an arrangement in another country where surrogacy is legal. In certain circumstances, German courts may also recognise a foreign judgment declaring them to be the child’s legal parents.

Other European countries have followed a similar route. Italy has taken an even stronger position. Since December 2024, Italian citizens may be prosecuted for arranging surrogacy abroad, even when it takes place in a country where the practice is legal.

Spahn did not commit a criminal offence, but he used his wealth to obtain abroad what his political party insists should remain prohibited in Germany.

Ireland has moved in the opposite direction. Here, the double standard criticised in Germany has effectively been built into legislation.

During the work of the Oireachtas Special Committee on International Surrogacy in 2022, officials from the office of the Attorney General explicitly warned that recognising commercial arrangements abroad while prohibiting them at home would be “difficult to justify” and would create a “double standard”. They highlighted the heightened danger of exploitation when affluent Irish people contract with women in poorer countries in order to have a child.

Those warnings had little effect. The committee recommended that international surrogacy should be “fairly and ethically compensated”, including reimbursement for lost earnings and domestic work. The Health (Assisted Human Reproduction) Act 2024 subsequently created a route for approving overseas arrangements and granting parental orders in Ireland.

The law calls these arrangements non-commercial, but labels do not alter realities. Large payments may be classified as “reasonable expenses”, while overseas agencies, clinics and other intermediaries can also receive fees. Ireland can therefore prohibit commercial surrogacy in principle while facilitating arrangements abroad that may be commercial in all but name.

What is striking is how little controversy this law has generated. Last year, the Minister for Health, Jennifer Carroll MacNeill, rejected the UN Special Rapporteur’s call to abolish all forms of surrogacy. The Rapporteur describes the practice as a system of exploitation and violence affecting women and children.

The few strong objections were heard mainly during the Oireachtas committee debate. Since then, political or public opposition has been scarce. Irish media coverage more commonly presents surrogacy through emotionally appealing and sometimes glamorous personal stories.

The happiness of the adults is real, and the dignity of every child is unquestionable. But attractive stories cannot settle whether pregnancy should be commissioned, whether financially vulnerable women are being exploited, or whether Ireland should facilitate abroad what it claims to prohibit at home.

Germany has publicly debated that double standard and forced a leading politician to answer for it. Ireland has legislated for the same double standard while scarcely debating it at all.