German Family Law Advice on Fertility Planning and Artificial Insemination

Many fertility clinics require a legal consultation with their patients prior to treatment. Our law firm offers such legal consultation and issues the certificate afterwards. The target group of the consultation are single women/ different- or same sex partnerships as well as married couples who are trying to conceive. The subject of the consultation is legal support in conceiving a child and the legal questions regarding family law arising in this context.

Our online consultation takes approximately 30-60 minutes and treats among others the following subjects:

• Custody rights and visitation rights ,
• Parentage law,
• Sperm donor registry,
• Role and function of a Guarantor,
• Hereditary law,
• Child support and other financial aspects

The consultation is done by Attorney Dr. Schröder-Rombey and Attorney Kalla. It is scheduled for approximately 60 minutes and costs 300 Euro. Following the consultation, the certificate will be issued to present at the fertility clinic.

“Artificial insemination” includes a few medical possibilities, which are legally managed differently and, therefore, can lead to different legal consequences. The most frequent form of artificial insemination in Germany is the intracytoplasmic sperm injection (ICSI), in which a single sperm is directly injected into an egg cell. The egg cell will then be transplanted into the mother’s womb.

The donation of egg cells is not allowed in Germany. Next to this method, a variety of other treatment techniques are also forbidden. This includes the transplantation of an egg cell for the purpose of surrogacy.  Additional to the above-mentioned ICSI, invitro-fertilization (IVF), sperm donation and the cryopreservation are allowed in Germany.

Paternity recognition in Germany refers to the legal binding recognition of a father towards a child to be their legal guardian. With this formal recognition, legal guardianship and, therefore, the relationship is lawfully recognised between the child and the father. The recognition of fatherhood can be realised before or after the birth of the child and can be declared at the registry office, the youth welfare office, the local court, or a notary public. Since it is an active declaration, there is no obligation to declare paternity – nevertheless, in case of conflict the acknowledgement of paternity can be ordered by court.

However, the paternity recognition is only possible if the mother was not married to another man at the point of birth. In this case, the person she was married to is automatically recognised as the legal father. If the biological and legal father are not identical, the biological father needs to file a paternity determination lawsuit. Paternity recognition can be done before or after the birth of the child in the registry office, in the youth welfare office, the district court, or notary. Since paternity recognition involves a statement to be submitted, there is naturally no obligation to do so.

Next to foster care, adoption is the most popular alternative in Germany, next to medical treatment for planning a family. There are many factors to be differentiated, such as different adoption forms, as well as personal requirements for the intended parents and the legal and formal adoption process, which can take quite long and can be difficult to manage.

Different regulations and requirements apply for the different adoption forms. The adoption of a minor is the most frequent form of adoption. However, it is also possible to adopt an adult in Germany. Next to this there are special requirements for the adoption by relatives and stepchild adoption. Finally, there are also legal differences to be considered regarding national and international adoption.

Even with the finalisation of the adoption process, there are further legal specialties. With the adoption, the child will be legally assigned to the adoption family. In the consequence, family law related obligations arise for the family. In the case of divorce of the intended parents, shared and possible support may become relevant. Regarding the biological family all claims become void. Consequently, the biological family no longer has any obligations towards the child, but vice versa the child loses all legal claims towards their biological family, inheritance rights included.

However, this does not apply to adopting an adult in Germany. In this case, the legal relationship with the biological family remains. Further legal specialties occur in the case of half-orphanage adoption, adoption within the family, and the mentioned adult adoption.

In Germany, insofar a child was both via surrogacy, the stepchild adoption is the adoption form for rainbow families, that enables both parents to become the legal guardians of the child. This is based on the current legal status, which does not allow the recognition of two same sex parents from the point of birth. The second parent must adopt the child as a stepchild to be legally recognised as the guardian. Consequentially, if both intended parents are not biologically related to the child, the adoption for both parents becomes necessary.

Using the service of surrogacy can also be an option for planning a family. In Germany, surrogacy is not allowed, and it is even partly codified in the penal law. However, it is possible to use the services in countries like Ukraine, Greece and the USA. If a child was born via surrogacy, a legal assignment to the intended parents becomes relevant. Because Germany does not recognise surrogacy legally, there are no specific regulations for this process.

In many cases, this leads back to the acknowledgement of paternity before birth for the father. The mother then has to adopt the child to reach legal paternity for both parents. In cases of same-sex parents, where the intended parents are two fathers, the same procedure occurs. In the case of two mothers, the process becomes more complex because of the abovementioned hurdles.

Around the topic of family planning naturally questions arise concerning custody and rights of determination of residence, as well as rights of contact that will always be aimed towards establishing or keeping the child’s welfare.

For custody- and access rights, it is irrelevant if the parents are married. Generally, both parents have the same rights and obligations towards their child.

There is no legally defined timeframe for visitation with the child. This depends on individual agreements between the parents. In this context, the best interest of the child needs to be prioritised as well.

Under the statutory presumption of § 1626 (3) sentence 1 BGB, the welfare of the child typically includes contact with both parents. This also applies to contact with other individuals with whom the child has established bonds, provided that maintaining these relationships promotes the child’s development (see § 1626 (3) sentence 2 BGB).

Visitation rights do not depend on an existing marriage between the parents. Further, it is not linked to child support payments. If the parents live permanently separated, there is no general solution for the visitation rights. However, the following circumstances need to be factored in:

• How far do the parents live apart from each other?
• In which environment does the child feel comfortable?
• Which school district does the child attend?
• How are the working hours of the parents?
• Is work related to frequent work trips?

There are no general guidelines. Much more the relation between the parents as well as the individual circumstances need to be considered.

In Germany, the basic regulations for parentage are ruled in the §§ 1591 ff. Of the German Civil Code (BGB). Here it determines who the mother and father of a child are. The mother is always the person who has given birth to the child, § 1591 BGB.

To determine paternity, German law knows three constellations:

• Father is, who was married to the mother at the time of birth, or
• Father is, who recognises paternity, or
• Father is, whose paternity has been recognized by court, § 1592 BGB.