German Family Law Advice on Family Planning, Fertility, Artificial Insemination and Parenthood

The basic requirements of parentage are regulated in Section 1591 et. seq. of the German Civil Code (BGB). These determine who the mother and father of a child are. Under German law, the mother is whoever gives birth to the child, Section 1591 BGB. The law provides three options for determining the father. Primarily, the father is the person who is married to the child’s mother at the time of birth. Otherwise, the father is the man who has recognised paternity or whose paternity has been established by a court, Section 1592 BGB.

The wide range of options for starting a family also means that the legal requirements are becoming increasingly complex. The extensive family constellations, some of which have not yet been considered in the legislation, also ensure that the assessment of the applicable provisions varies depending on the individual case.

Couples who are unable to have children together naturally have the option of artificial insemination. Artificial insemination covers a range of medical options, which are handled differently in legal terms and can, therefore, raise different legal questions. The most common form of artificial fertilisation in Germany is intracytoplasmic sperm injection (ICSI), in which a single sperm cell is injected directly into the retrieved egg cell. The fertilised egg is then transferred into the woman’s uterus. A total of 125,542 artificial inseminations were performed in 2021. There are legal and financial differences between homologous and heterologous sperm donation. Statutory health insurance companies only cover the costs of artificial insemination if both the egg and sperm come from the intended parents. If the couple uses sperm from a third party, e.g. because the man is infertile or because the intended parents are two women, this is a heterologous sperm donation, which is not covered by statutory health insurance. According to Section 1 of the German Embryo Protection Act (ESchG), the egg cell must always come from the woman to be fertilised. Egg donation is a criminal offence in Germany.

According to the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth permitted methods and treatment techniques are:

• Intrauterine insemination (fertilisation of the egg within the uterus),
• in vitro fertilisation (IVF) and
• intracytoplasmic sperm injection (ICSI),
• sperm donation,
• microsurgical epididymal sperm aspiration (MESA) and testicular sperm extraction (TESE),
• the freezing of testicular tissue, sperm and (to a limited extent also fertilised) eggs (cryopreservation),
• embryo donation, but limited to surplus embryos that have developed in an authorised manner,
• pre-implantation genetic diagnosis in the context of IVF, but only for certain medical indications, after detailed medical and psychosocial counselling and with the written consent of the woman from whom the egg cell originates and with the approval of an ethics committee.

The following are prohibited by law in Germany:

• Surrogacy and surrogate motherhood,
• egg donation,
• the donation of pronuclear stages, i.e. eggs in the process of fertilisation,
• treatment with cryopreserved sperm from the deceased partner,
• the production of more fertilised eggs or embryos than can be transferred to a woman within one cycle (avoidance of surplus embryos),
• cloning or experimentation on embryos,
• embryo selection (selection of the embryo based on certain parameters such as gender, hair, or eye colour).

Precisely because the identity of the legal and biological father can differ, paternity is a legally complex issue with specific follow-up questions. What rights does the biological father have towards the child? What rights does the child have regarding its biological parentage? Questions also arise regarding rights of access, custody, maintenance obligations and succession. As German law stipulates that a child has a mother and a father, legal difficulties arise for same-sex couples. The regulations on paternity stipulate that while the male spouse of a woman giving birth is recognised as the legal father, the female spouse of a woman giving birth is not recognised as the co-mother. According to the current legal situation, a (stepchild) adoption is therefore always required for same-sex spouses and registered civil partners to achieve joint legal parenthood.

Recognition of paternity means the legally binding acknowledgement by a man that he is the father of a child. This acknowledgement establishes the child’s relationship to the father – in cases where the mother is not married to a man who is considered the child’s father by law. An acknowledgement of paternity can be made before and after the child’s birth and can be declared at the registry office, the youth welfare office, the local court, or a notary. As it is a declaration to be made, there is no obligation to recognise paternity. However, in a dispute about paternity, paternity can be established in court to give the child two parents.

There are extensive options in the area of adoption, – and there are just as many legal subtleties to consider. From the differentiation of the form of adoption to the personal requirements of the intended parents to the actual adoption procedure, there are many legal aspects that are difficult to handle by the intended parents themselves, especially in such an emotional process as an adoption.

The regulations on German adoption law are set out in the German Civil Code (BGB), the German Act on Adoption Placement and Support, and the Prohibition of Surrogacy Placement (AdVermiG). However, other laws must also be considered during the adoption process, e.g. the Civil Status Act (PStG).

Various regulations and requirements apply to the different forms of adoption in Germany. The adoption of minors is the most frequently chosen form of adoption, but adult adoption is also possible. There are specific requirements for the adoption of relatives and stepchildren. Finally, a distinction must be made between domestic adoption and adoption abroad.

Even after the adoption procedure has been finalised, further legal peculiarities are often misunderstood. In principle, the adoption results in the child being legally assigned to the adoptive family. This means that the adoptive family has all family law obligations, including shared custody and any maintenance obligations in case the adoptive parents divorce. The legal assignment of the child to the biological family is withdrawn with the adoption, so there are no further legal obligations on the part of the birth family. Conversely, the child no longer has any claims against the biological parents, particularly regarding any inheritance claims. However, there are also legal peculiarities regarding inheritance claims – special regulations apply to half-orphan and relative and adult adoptions.

A couple can also fulfil their wish to have children with the help of a surrogate mother. Many things are medically possible here – but the legal handling is complex. In Germany, the rules on surrogacy are clear: it is completely prohibited, Section 1 (1) No. 2, 6, 7 of the Embryo Protection Act (EschG). Some couples, therefore, go abroad to find a surrogate mother for themselves legally.

If a child is born through surrogacy, it is necessary to assign the intended parents as legal parents. This process is not clearly regulated and is handled differently depending on the individual case. In some cases, parenthood is recognised, while in others, an adoption procedure must be carried out in Germany.

Regarding questions about the desire to have children, custody, and other corresponding rights, such as rights of access, must also be considered. Custody and access rights are always based on the child’s best interests. As a rule, both parents are entitled to the same rights. Only in exceptional cases are other individual arrangements made.

For custody and access rights, it is particularly irrelevant whether the parents are married – the mother and father, or even two mothers or two fathers, have the same rights and obligations towards their child.