Successful Judgement: Rainbow Family through Surrogacy

A Case Study from our Legal Practice

In July 2023, our lawyers successfully obtained the registration of our clients’ parenthood before the Düsseldorf Local Court for surrogacy that took place abroad. This spared our clients the time-consuming adoption procedure. This judgment not only represents a further milestone in the field of surrogacy law in Germany but is also groundbreaking for same-sex fathers who wish to have children.

Who are the (Initial) Parents of the Intended Child under German Law?

German family law is very clear about determining a child’s mother: In every case, a child’s mother is the woman who gave birth to the child. Applying this to surrogacy means that the surrogate mother is initially considered the mother, whereas the intended mother is not. There is no way to bypass this legal situation, not even a signed waiver by the surrogate mother.

Determining a child’s father, on the other hand, is not as clear. If the surrogate mother is married, her husband is considered to be the father of her child, § 1592 No. 1 German Civil Code (“BGB”). If the surrogate mother is not married, fatherhood can be established through the recognition of fatherhood. This means that if the intended father is also the child’s biological father, he can legally recognise his paternity. This recognition of fatherhood may take place during the pregnancy of the surrogate mother or after the birth of the intended child. The partner of the recognised father then has the possibility to adopt the intended child via stepchild adoption. If the intended father is not the child’s biological father, paternity can only be established by a judicial finding (of a court).

A foreign court may grant the judicial finding of parenthood. According to § 108 (1) of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (“FamFG”), foreign judgments shall be recognised by a German Family Court without the requirement of a particular proceeding. Intended parents should note that if they want a German Family Court to determine their parenthood by recognising a foreign judgment, the foreign judgment must explicitly name the intended parents as the child’s legal parents. If the parenthood was not found by a foreign court but, for example, by a foreign registrar, the German Family Court is not able to recognise the parenthood of the intended parents and, therefore, the child would – per German Family Law – be assigned to the surrogate mother. In such an event, the only possibility left for both the intended parents is to adopt the intended child.

Details about the Case: Recognition of the Parenthood of both Fathers

In 2021, our clients (two intended fathers) welcomed their intended child in Mexico via surrogacy. At the time, both spouses were living in Mexico. The child acquired Mexican citizenship at birth. The two intended fathers took legal action and won the case. Both were registered as fathers on the birth certificate with joint surnames. The court did not register the surrogate mother on the birth certificate.

In 2022, the fathers requested the child’s subsequent certification by a German registry office per the Mexican birth certificate submitted. The application was rejected. Instead, the registry office registered the paternity of the genetic father and the maternity of the surrogate mother. Our clients then took legal action to be entered into the family register as fathers.

The Successful Judgment

Firstly, the court established that the child also holds German citizenship due to their genetic relationship with one of the fathers, who is a German citizen. Furthermore, it was established that both applicants have parental status for the child.

Secondly, the Mexican court’s decision to register the two men as fathers in the birth certificate constitutes—and this point is crucial—a decision within the meaning of Section 108 (1) FamFG, so it must be recognised in full by German courts.

The court then spends most of its arguments answering the question of whether the recognition of parenthood after surrogacy abroad is a violation of German “public policy”. Public policy rejects the application of foreign law if the application of said law would lead to unacceptable results in the German legal order. According to Section 109 (1) No. 4 FamFG, the recognition of a foreign decision is excluded if it leads to a result incompatible with essential principles of German law, particularly if the recognition is incompatible with fundamental rights (violation of public policy). Referring to the statements of the Federal Court of Justice, the Düsseldorf Local Court states “that the decisive factor is whether the result of the application of the foreign law in the specific case is so contrary to the basic ideas of the German regulations and the concepts of justice contained therein that it appears unacceptable according to German understandings“.

Is the Recognition of Parenthood compatible with German Law?

To answer this question, the court noted, firstly, that if the parenthood of the two intended fathers were not to be recognised, the child would only have one parent, as the relationship with the surrogate mother is merely a “halted relationship.” According to the applicable law of the surrogate mother’s home country (Mexico), she is not the child’s mother. If the recognition of parenthood of both the intended parents were refused, the child would be left with only one father (the biological father).

Secondly, the Düsseldorf Local Court also referred to considering the child’s right to parental care and upbringing under Article 2 (1) in conjunction with Article 6 (1) S.1 of the German Basic Law (“GG”). Removing the existing family relationship between the child and the intended parents would interfere with the child’s basic rights. Essential for the equal rights of same-sex couples compared to opposite-sex couples is the court’s statement that same-sex parenthood is socially equivalent if the parenthood is permanent and legally established. Consequently, the same-sex nature of the relationship of the intended parents must not play a role in considering the recognition of parenthood by the court.

Furthermore, the court also addresses the possibility of adoption. If parenthood is not recognised, the intended parents or the father who is not genetically related to the child are left with the option of (stepchild-)adoption. On the one hand, the court assumes that the individual examination in the adoption procedure would have the same result as the direct recognition of parenthood. On the other hand, and this is the decisive difference, adoption proceedings harbour risks for the child (compared to the recognition of parenthood): In the case of adoption, even after the birth of the child, the intended parents could still decide not to adopt the child as their own – for example due to a disability of the child. Moreover, if – for example – the intended parents were to separate or regret their decision, the genetically unrelated parent could permanently prevent legal parenthood from coming into being by not adopting the child. Ultimately, the child would remain parentless in the country of birth (Mexico), and the intended parents, on the other hand, would be released from responsibility, even though they were the initiators of the medically assisted conception.

Overall, it must be stated that the court stresses the importance of a child’s welfare and identifies it as the highest guiding principle. Accordingly, recognising the parenthood of the intended parents does not contradict the fundamental principles of German family law.

Schlun & Elseven: Legal Assistance in German Family Law

If you also had your child through surrogacy abroad or are considering becoming a parent with the help of a surrogate mother, please do not hesitate to contact us. Our German family law experts will support you in every way. Our legal experts will provide you with comprehensive advice on all necessary legal steps on your way to parenthood.