The term “embryo donation” or “embryo adoption” refers to the voluntary transfer of so-called ‘surplus’ embryos to third parties. These embryos were produced as part of a reproductive treatment of a couple but are not used by these to induce a pregnancy. So-called ‘surplus’ embryos can occur when, for example, there are medical reasons why the embryo cannot be further developed or if a couple decides against further reproductive medical treatments.

Embryo donation or embryo adoption are not conclusively regulated under German Law. The Embryo Protection Act (Embryonenschutzgesetz (ESchG)) initially contains provisions which are intended to prevent the creation of ‘surplus’ embryos. According to § 1 para. 1 no. 5 ESchG only as many egg cells may be fertilised in reproductive treatments as are to be transferred to the respective woman within one treatment cycle. If, however, the situation arises that embryos have been produced which are no longer to be used by the persons undergoing reproductive treatment themselves to induce pregnancy, an embryo donation is only permissible under the conditions laid down in § 1 para. 1 no. 7 ESchG. Among other things, the transfer of an embryo may only take place if the person who will carry the embryo does not intend to transfer the child to a third party ('surrogate mother').

On 4 November 2020, the Bavarian Supreme State Court (“Bayerisches Oberstes Landgericht”) ruled that the transfer of a woman’s egg cells for the purpose of bringing about a pregnancy in another woman is punishable by law even when the egg cell is in the 2-pronuclear state. The 2-pronuclear state or 2-PN state is a state in which the sperm cell has already entered the egg cell but hasn’t fused with it yet. Background of the court’s decision is the case of members of the network embryo donation (“Netzwerk Embryonenspende”) who were charged with having violated ESchG § 1 para. 1 no. 2, according to which it is punishable to fertilize an egg cell for any purpose other than that of bringing about a pregnancy of a woman whose egg cell it is. Previously, on 20 March 2018, the network's members were acquitted in this matter by the Local Court of Dillingen. In the 16 instances of the transfer of egg cells, which have already developed into embryos, the Bavarian Supreme State Court confirmed the members’ previous verdict of acquittal, because the transfer of embryos for the same purpose is not punishable. However, in the 17 other instances, in which the egg cells were still in the 2-pronuclear state, the court granted the prosecution's appeal and referred the case to the State Court of Augsburg for retrial.

The implementation and regulation of an embryo donation and subsequent embryo adoption is the subject of a wide range of discussion, particularly in the fields of law and ethics. For example, critics of the current regulation find fault with the insufficient regulation of the selection of recipient persons of parents for the donated embryo. In this context, it is important to take the risks of discrimination into account. With regard to the welfare of the children born from an embryo donor, it should be clarified, similar to adoption procedures, how and in which form information on genetic origin could be kept available. The distinction between embryo donation and egg cell donation is also criticised because it represents a legal grey area. The decision of the Bavarian Supreme State Court makes clear that the legal basis for prohibiting egg cell donation and allowing embryo donation must be thoroughly examined. From an ethical point of view, the question also arises, inter alia, whether the practice of embryo donation entails a risk of commercialising embryos.