Annika Orich is Assistant Professor of German at the Georgia Institute of Technology. Her research centers on the intersection between science and art, debates on multiculturalism and migration, discourses on memory and identity, and questions about humor. Her book project on reproductive imaginations shows how reproductive processes in biology and the arts evoke similar anxieties in the German cultural realm. She has published on Germans’ changing attitudes toward their Nazi past and the function of comedy by immigrants in German identity debates, and her article “Archival Resistance: Reading the New Right” is forthcoming (German Politics and Society).
At the end of April 2020, the BioTexCom Center for Human Reproduction posted a four-minute video about babies in the Ukrainian companies’ care who were born via surrogacy and currently unable to be with their parents due to COVID-19 travel restrictions on its YouTube channel. Sitting in a conference room while reading a prepared statement from a MacBook in his lap, BioTexCom’s lawyer addressed clients around the world who had abruptly been prevented from coming to Kiev to meet and pick up their children. Two seconds into the lawyer’s statement, the camera cuts to and pans across neatly arranged rows of swaddled newborns in hospital baby cots.
The crying of these babies—which is used to drown out the voice of BioTexCom’s lawyer—ultimately alert viewers of the extent to which laws not only regulate the unification of families in times of COVID-19, but also facilitate the very existence of these children. In the Ukraine, commercial surrogacy for infertile heterosexual married couples is legal. In Germany, the Embryo Protection Act bans any form of surrogacy.
BioTexCom produced this video to assure parents of the well-being of their children, and to urge them to obtain travel exemptions. Yet the images of rows of babies waiting to meet their intended mothers and fathers for the first time caused a national and international debate on the ethics of surrogate motherhood and the (non-)regulation of the assisted reproductive technology (ART) market.
Legislating ART: The Curtailment of Reproductive Freedom
Intrauterine insemination (IUI), in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), sperm or egg donation, and surrogacy are the medical treatments available for heterosexual couples dealing with infertility, same-sex couples desiring to have biological children, or subfertile common-law spouses and healthy singles hoping to raise a family. While reproductive rights are ensured by the Basic Law, Germany’s Embryo Protection Act, adopted in 1990, curtails the freedom to reproduce for people who are dependent on ART. It prohibits surrogacy, egg donation, or elective single-embryo transfer (eSET). German health insurance protocols further regulate access to reproductive care: patients must be married and meet age requirements to receive coverage for half of the costs of their ART treatments. Intended parents must also navigate German family law. For instance, the law considers the male partner in a heterosexual marriage the legal father of a child born via sperm donation, but does not recognize a woman who is married to her female spouse who gave birth to her biological child conceived with the aid of a sperm donor as the mother of the newborn. If both partners in a same-sex marriage would like to be a child’s legal parents, the laws governing the adoption of stepchildren apply. Since German family law views the woman who carries the child as the legal mother, children born via surrogacy abroad do not automatically possess German citizenship, even if the baby is the biological child of German parents. Even in times in which the coronavirus does not wrack havoc, the legal obstacles that people who use ART to exercise their procreative liberty face every day in Germany are thus pitted against the freedom to reproduce that the Basic Law defines as particularly worthy of protection.
Not for Everyone: Restricting an Essential Human Right
“Reproduction is an essential human right that transcends race, gender, sexual orientation, or country of origin,” the American Society for Reproductive Medicine (ASRM), the European Society of Human Reproduction and Embryology (ESHRE), and the International Federation of Fertility Societies (IFFS) emphasize in their joint statement on assisted reproduction and COVID-19 on May 29, 2020. The declaration further stresses that “reproductive medicine is essential.” The reiterated acknowledgement of reproductive liberties highlights the extent to which COVID-19 restrictions present a serious interference with basic rights. Ultimately, the statement relegates to “local conditions, including prevalence of disease, status of government or state regulations, and availability of resources” in determining the safety and, thus, necessity of offering care. In previous weeks, reproductive care centers, along with other healthcare services deemed non-essential, had shut down, and ESHRE and ASRM recommended against ART treatments in light of the pandemic. At the same time, stay-at-home orders sparked similar newspaper headlines across the world: Will corona lockdowns lead to a baby boom? While legal restrictions in response to the COVID-19 pandemic thus did not affect most humans’ choice of pregnancy and parenthood, the situation looked quite differently for people relying on ART: their essential right to reproduce was suspended in actuality—even though no actual law governing reproductive rights had been amended or newly enacted.
For some, the loss of access to ART treatments will result in being deprived of the chance to become (biological) parents. First studies on the effects of interruptions in reproductive care due to COVID-19 regulations on patients hoping to have children with the aid of ART show an abrupt decline in patients’ mental health. The COVID-19 pandemic thus sheds light upon the intricate ways in which law and reproduction intersect—individual fates of parents and children are at their juncture. Further, it not only points to emergent inequalities during the coronavirus pandemic but also serves as a reminder of long-standing, discriminatory practices that shape the reproductive rights of people who make use of ART treatments. A case in point is the Embryo Protection Act’s current prohibition of eSET. As the eSET ban causes multiple pregnancy and birth, the Embryo Protection Act puts women’s and children’s health and lives at risk, and creates an additional, unnecessary burden for Germany’s health care system at the best of times. While the COVID-19 regulations present a temporary suspension of essential reproductive rights in the context of ART treatments, the Embryo Protection Act’s illegalization of eSET permanently deprives women of the chance to make the safest and best choices for their and their children’s health. By banning surrogacy, it moreover outsources accountability to the global commercialized ART market and non-German jurisdictions, and assumes no responsibility for exactly those women and children, surrogates and the babies they bear, it claims to protect.
Complex Intersections, No Easy Answers
BioTexCom’s video exemplifies these complex intersections between reproduction and law, which always are a balancing act between the basic rights of embryos and of different people, their health and interests, and technological capabilities. The video adds a third aspect to this junction: the different responses by different viewers to the images of swaddled babies illustrate the multifaceted dynamics that exist between the human right to reproduce and the possibilities ART offers. For BioTexCom, the images of cots of crying babies were a means to reassure parents, and to stir them into action to receive travel exceptions. As parents were unable to be physically with these newborns, the reality of parenthood first manifested itself via film; like ultrasounds during pregnancy, photos made these children come to life. This effect also turns BioTexCom’s audiovisual message into an advertisement, which offers hope for people unable to become parents without ART. While the viral nature of the video then provided free publicity for the company, the images of crying newborns, for many viewers, represented a dystopian baby factory and ignited calls for stricter legal control of the commercial surrogacy industry. The different responses to BioTexCom’s video thus point to the significance of images and imagination in shaping our understanding of ART and, consequently, its regulation.
Last year, the National Academy of Sciences Leopoldina and the Union of the German Academies of Sciences and Humanities published a detailed expert opinion, which called for a fundamental overhaul of the outdated Embryo Protection Act and the passage of a modern law of reproductive medicine. Not only has the COVID-19 pandemic enforced its own legal restrictions on people’s reproductive care but it also serves as a reminder for the urgency of modernizing Germany’s existing discriminatory and harmful laws and policies that currently regulate the reproductive rights of those patients that must rely on ART to become parents.
Diesen Artikel zitieren: Annika Orich, „Assisted Reproductive Technology (ART) in Times of COVID-19“, in: History | Sexuality | Law, 30/07/2020, https://hsl.hypotheses.org/1414, (abgerufen am: Datum).
 BioTexCom. “Surrogacy: babies are waiting for their parents.” YouTube, uploaded by BioTexCom, 30 Apr 2020, https://youtu.be/xPdRx_L96C0.
 The video shows approximately 40 newborns. In mid-May, Ukrainian officials estimated that around 100 babies were born via different surrogacy agencies and unable to be united with their parents. If travel restrictions were not eased within the foreseeable future, over 1,000 children may find themselves in a similar situation in the Ukraine alone. (Kramer, Andrew E. “100 Babies Stranded in Ukraine After Surrogate Births.” New York Times, 16 May 2020, https://www.nytimes.com/2020/05/16/world/europe/ukraine-coronavirus-surrogate-babies.html. Accessed 9 July 2020.) Travel restrictions also affected the surrogacy business and families in other countries, for example the USA.
 See, for example, Kramer in the New York Times (see footnote 2); Grytsenko, Oksana. “The stranded babies of Kyiv and the women who give birth for money.” The Guardian, 15 June 2020, https://www.theguardian.com/world/2020/jun/15/the-stranded-babies-of-kyiv-and-the-women-who-give-birth-for-money. Accessed 9 July 2020; or Pyrlik, Grigori. “Babys für die ganze Welt.” taz, 28 May 2020, https://taz.de/Leihmuetter-aus-der-Ukraine/!5685327/. Accessed 9 July 2020.
 In reality, the situation is slightly more nuanced, as some health insurances pay up to 100 percent of treatment costs, and some states also cover fees for same-sex couples, as long as they are married.
 It is noteworthy that the Federal Foreign Office responds to this issue in its FAQ (https://www.auswaertiges-amt.de/de/service/fragenkatalog-node/-/606800?openAccordionId=item-606160-6-panel).
 “Assisted reproduction and COVID-19. A joint statement of ASRM, ESHRE and IFFS.” ESHRE, 29 May 2020, https://www.eshre.eu/Press-Room/ESHRE-News. Press release. Accessed 9 July 2020.
 See, for instance, ESHRE’s press release from 2 April 2020, https://www.eshre.eu/Press-Room/ESHRE-News (accessed 9 July 2020) and ASRM’s statements at the following link https://www.asrm.org/news-and-publications/covid-19/#Statements (accessed 9 July 2020). Although the statement does not carry legal authority, the guideline issued by a team of international experts resulted in the suspension of reproductive care—in addition to any existing legal restrictions. See also the memorandum published by the Deutsche Gesellschaft für Reproduktionsmedizin (DGRM; German Association for Reproductive Medicine) on 15 April 2020, https://www.repromedizin.de/fileadmin/Mitgliederinformation_15.04.2020.pdf (accessed 17 July 2020).
 See “Session 67: COVID-19 – Psychosocial impact of delayed treatment.” ESHRE Virtual Annual Meeting, 8 July 2020.
 Elective single-embryo transfer (eSET) describes the practice of selecting—from several potential candidates—the embryo, which has the best chances of resulting in pregnancy. The embryo of the highest quality is transferred, and other available, potentially equally good, embryos are cryopreserved. While eSET is standard practice internationally, this—due to the Embryo Protection Act—is not the case in Germany—with unjustifiable consequences.
 Deutsche Akademie der Naturforscher Leopoldina e. V., and Union der deutschen Akademien der Wissenschaften e. V. “Fortpflanzungsmedizin in Deutschland – für eine zeitgemäße Gesetzgebung.” Halle (Saale), 2019. The report is also a response to the fact that approximately 3% of children born every year in Germany exist because of ART (page 11).