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Germany: Court Recognizes Co-Mothers of Child

(July 6, 2016) On June 15, 2016, the German Federal Court of Justice (Bundesgerichtshof, BGH) published a decision issued on April 20 in which it held that a South African law that awards co-motherhood to the German wife of the biological mother of a child born in a same-sex marriage has to be recognized in Germany. The Court granted German citizenship to the child based on the German citizenship of the co-mother, even though the biological mother only held South African citizenship. (BGH, XII ZB 15/15, Apr. 20, 2016, BGH website (in German).)

The plaintiffs in the case were two women who were residing in South Africa and had entered into a civil-union type marriage there in 2008. One of them held dual German/South African citizenship (plaintiff no. 1), whereas the other woman held only South African citizenship (plaintiff no. 2). In 2010, plaintiff no. 2 gave birth to a child who had been conceived through artificial insemination to which both spouses had agreed. The plaintiffs applied to the German civil registry office in Berlin to have the birth abroad registered in the German register of births. The civil registry office denied their request and did not recognize the South African rule concerning parenthood. The plaintiffs appealed the decision. (BGH, supra, ¶¶ 1-4.)

Background on Same-Sex Unions

In Germany, same-sex couples are not allowed to get married. Instead, they have the option to enter into a registered life partnership that offers rights and duties equal or similar to those of a marriage. (Lebenspartnerschaftsgesetz [LPartG] [Registered Life Partnership Act] Feb. 16, 2001, BUNDESGESETZBLATT [BGBl.] I at 266, as amended; Act on Registered Life Partnerships (as last amended June 20, 2014), GERMAN LAWS ONLINE.) In regard to children, there is no presumption that same-sex partners are co-parents of a child born in a marriage, nor can the partners jointly adopt a child. The only option available to them is a so-called “successive adoption,” by which an individual adopts a child already adopted by their partner or adopts the biological child of their partner. (Act on Registered Life Partnerships, § 9 ¶ 7.)

South African law, on the other hand, allows same-sex couples to enter into a civil union that can either be called a marriage or a civil partnership. (Civil Union Act 17 of 2006, §§ 1, 13, University of Pretoria website.) If a child conceived through artificial insemination with the consent of both same-sex spouses is born to one spouse during the civil union, both spouses are considered parents of the child. (Children’s Act 38 of 2005, § 40, ¶ 1 (updated through Aug. 9, 2015), University of Pretoria website.)

German Nationality Law

Under German nationality law, a child is granted German citizenship if at least one of the parents has German citizenship (ius sanguinis). (Staatsangehörigkeitsgesetz (StAG) [Nationality Act], July 22, 1913, REICHS-GESETZBLATT [RGBl.] [REICH LAW GAZETTE] I at 583, as amended, § 3, ¶ 1, No. 1, § 4, ¶ 1; Nationality Act (as last amended Nov. 13, 2014), GERMAN LAWS ONLINE.) If a German was born abroad, the parents or the child can apply to the registry of births in Berlin to have the birth recorded. (Personenstandsgesetz (PStG) [Civil Status Act], Feb. 19, 2007, BGBl. I at 122, as amended, § 36, ¶ 1, GERMAN LAWS ONLINE.)

Decision

The Federal Court of Justice as the court of last instance in the case held that the foreign birth had to be recorded in the German registry of births, because the child was descended from the wife of the birth mother and therefore had German citizenship. German conflict of laws rules provide that the descent of a child is governed either by the law of the place where the child has his or her habitual residence, by the law of the country of his or her parent’s nationality, or by the law that governs the general effects of the marriage of the parents. (Einführungsgesetz zum Bürgerlichen Gesetzbuche [EBGBG] [Introductory Act to the Civil Code], as promulgated on Sept. 21, 1994, BGBl. I at 2494; corrected in BGBl. 1997 I at 1061, as amended, art 19, ¶ 1; Introductory Act to the Civil Code (as last amended Nov. 20, 2015), GERMAN LAWS ONLINE.) As all the alternatives of this provision lead to the application of South African law, the Court concluded that the spouses were considered co-parents of the child. (BGH, supra, ¶¶ 16, 27-30.)

The Federal Court of Justice then addressed the question of the status of same-sex marriages concluded abroad and whether they had effects on parentage. The lower courts had been split on the question of whether a foreign same-sex marriage could be recognized as a marriage in Germany or only as a registered life partnership. The Federal Court of Justice held that due to the fact that same-sex marriage does not exist in Germany, German law recognizes same-sex marriages concluded abroad only as registered life partnerships under conflict of laws rules. Even if the foreign law provides more rights to the couple, German law will only award them the rights established for German registered life partners (a “rights cap”). (Introductory Act to the Civil Code, art. 17b, ¶ 4.) The Court concluded that the “rights cap” had no bearing on the present case, because the status of the wife as co-parent of the child was a result of a legal provision concerning descent and not an effect of the registered life partnership. (BGH, supra, ¶¶ 31-48.)

Lastly the Court declared that the recognition of the South African rule concerning parentage did not violate German ordre public rules. According to article 6 of the Introductory Act to the Civil Code, “a provision of the law of another country shall not be applied where its application would lead to a result which is manifestly incompatible with the fundamental principles of German law.” In the opinion of the Court, growing up in a committed same-sex registered partnership benefitted children the same way as growing up in an opposite-sex marriage. The Court concluded that the best interests of the child therefore did not prevent the recognition of co-parenthood. (BGH, supra, ¶¶ 49-52.)