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 judgement not only represents a further milestone in the field of surrogacy but is also groundbreaking for same-sex fathers who wish to have children.

Legal Situation regarding Surrogacy

The problem with parenthood after surrogacy is that it is generally forbidden in Germany to have a child born by a surrogate mother. In addition, German law initially speaks against the parenthood of intended parents, as Sections 1591 et seqq. of the German Civil Code (BGB) regulate parenthood and do not include the possibility of surrogacy – due to the prohibition. As a result, over the years, there have been repeated legal disputes about the allocation of the child to the intended parents due to surrogacy carried out abroad.

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

The parenthood of a child is regulated in the German Civil Code. As surrogacy is prohibited in Germany, the laws do not stipulate that the intended parents are the legal parents. Accordingly, the mother of a child is always the woman who gives birth to it. In the case of surrogacy, the surrogate mother is, therefore, always the legal mother of the child under German law. A contractual declaration cannot change this.

According to German law, the father of a child is either the mother’s husband, the man whose genetic relationship is recognised, or the man whose paternity is established by a court. In particular, for same-sex (married) couples, the law does not yet provide that the same-sex spouse automatically becomes the parent of the child by law.

According to the current legal situation in Germany, the spouse not genetically related to the child must adopt the child (stepchild adoption) to be registered as a parent. This means that surrogacy is associated with further difficulties for same-sex couples. In many cases, therefore, an adoption after surrogacy abroad is carried out to establish a family relationship between the intended parents and the child.

The situation is only different if a German court recognises a decision made abroad regarding parenthood. Such recognition then applies to both parents, whether mother or father.

Initial Judgement: Recognition of the Parenthood of both Fathers

In 2021, our clients had a child in Mexico via a surrogate mother. At the time, both spouses were also living in Mexico. The child acquired Mexican citizenship at birth. For the two fathers to be named both as parents on the birth certificate, they took legal action in Mexico, which they won. Both fathers were registered on the birth certificate with joint surnames. The surrogate mother is not named on the birth certificate.

In Germany in 2022, the fathers finally applied for the child’s subsequent certification in accordance with the Mexican birth certificate submitted. The application was rejected. Instead, the registry office notarised the paternity of the genetic father and the maternity of the surrogate mother. The family then took legal action to have both fathers enter the family register.

Firstly, the court established that the child is also a German citizen 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.

The decision of the Mexican court to register the two men as fathers in the birth certificate constitutes – this point is decisive – a decision within the meaning of Section 108 of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG), so that it must be recognised in full by German courts. Section 108 I FamFG reads as follows: “[…] foreign judgments shall be recognised without the requirement of a particular proceeding.”

Is the Recognition of Parenthood compatible with German Law?

The court spends most of its arguments on the question of whether the recognition of parenthood after surrogacy abroad is a violation of public policy. Public policy (= public order) rejects the application of foreign law if it would lead to unacceptable results. According to Section 109 Para. 1 No. 4 FamFG, the recognition of a foreign decision is excluded if it leads to a result that is incompatible with essential principles of German law, in particular, if the recognition is incompatible with fundamental rights (violation of public policy). Referring to the statements of the Federal Court of Justice, the Düsseldorf Regional 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.

In particular, the court noted that if the parenthood of the two intended fathers was not recognised, the child would only have one parent, as the relationship with the surrogate mother is merely a “limping relationship”. According to the law of the surrogate mother’s home country, she is not the child’s mother, and, in her role as surrogate mother, she also declares that she has no interest in taking on the role of mother. If the recognition of the parenthood of the intended parents is refused, the child will only be left with the father, who is genetically related to it. In addition to the case presented here, this harbours further complications for intended mothers for whom there is no comparable option for acknowledging paternity.

The Düsseldorf Local Court also referred to considering the child’s right to parental care and upbringing under Art. 2 Para. 1 in conjunction with Art.6 Abs. 1 S.1 of the German Basic Law (GG). The existing family relationship between the child and the intended parents would interfere with the child’s rights if this relationship were removed.

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. Accordingly, the same-sex nature of the intended parents must not play a role in the question of recognising parenthood.

Finally, 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 have 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.

Secondly – and this is the decisive difference – adoption proceedings harbour risks for the child that do not exist in the case of recognition. This is because even after the birth of the child, it would still be up to the intended parents to decide whether to adopt the child as their own or – for example, due to the child’s disability – to refrain from having a child. If, for example, the intended parents separate or regret their decision, the genetically unrelated parent would, in any case, be able to permanently prevent legal parenthood from coming into being.

Ultimately, the child would remain parentless in the country of birth and would not be able to enforce an assignment to the surrogate mother made in Germany. The intended parents, on the other hand, would be released from responsibility, although they were the initiators of the medically assisted conception, and the child owes its existence to their decision.

Overall, it can be observed that the court attaches particular importance to the best interests of the child and cites this as a decisive argument. Accordingly, recognising the parenthood of the intended parents does not contradict the fundamental principles of German law. The protection of the best interests of the child is regulated in Section 1666 BGB, Art. 5 Para. 2 GG and Art. 3 of the UN Convention on the Rights of the Child.

Judgment of the Düsseldorf Local Court

The judgment of the court proceedings is the instruction to the registry office to notarise the birth of the child in such a way that the applicants are identified as parents. The intended fathers are now also the legal parents of their child.

Supreme Court Case Law: BGH Decision of 10/12/2014

In its statements, the Düsseldorf Local Court points out that it has followed the statements of the Federal Court of Justice in its decision of 10 December 2014 – XII ZB 463/13.

It was already established by the court in 2014 that a foreign decision within the meaning of Section 108 FamFG is decisive for recognising parenthood. Only then can a German court confirm parenthood without conducting its examination. If, on the other hand, the intended parents were entered on the birth certificate by a registrar without a court or official decision having to be made, a separate examination of parenthood must be carried out in Germany – which is then governed by German law, according to which the intended parents are not the legal parents of the child in most cases.

The Federal Court of Justice made the following leading decision: A foreign court decision that contains the determination of the legal relationship, in contrast to the mere registration of the relationship, can be recognised.

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 possible. The legal assessment of the fulfilment of your desire to have children is undoubtedly an emotionally stressful situation in which you can count on the help and support of our legal experts. They will provide you with comprehensive advice on all the necessary legal steps, initiate them and accompany you throughout the entire process.