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Germany: Federal Court of Justice Rules Same-Sex Marriage Does Not Make Wife of Child’s Mother Co-parent by Law

(Nov. 9, 2018) On October 10, 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal cases, held that being in a same-sex marriage does not automatically make the wife of the mother of a child co-parent by law. The Court stated that there is no legal presumption for same-sex couples similar to the one for opposite-sex couples that presumes that the husband is the baby’s father. (BGH, Oct. 10, 2018, Docket No. XII ZB 231/18, ECLI:DE:BGH:2018:101018BXIIZB231.18.0, BGH website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, §§ 1592, 1741, German Laws Online website.)

Facts of the Case

The plaintiffs entered into a same-sex registered partnership in May 2014. On October 12, 2017, they converted their partnership into a same-sex marriage after Germany changed the law to allow same-sex marriages. On November 3, 2017, one of the plaintiffs gave birth to a baby that was conceived via artificial insemination with semen from a sperm bank. She was recorded as the mother of the child in the register of births. No other parent was listed. (BGH at 2.)

The second plaintiff applied to the civil registry office to correct the birth entry to reflect that she is the co-mother of the child, as the child was born within marriage. The civil registry office denied her request. The court of first instance ruled in her favor, but the court of appeals reversed that decision upon appeal from the civil registry office. (Id. at 4.)

Ruling

The Federal Court of Justice upheld the decision of the court of appeals to deny the claim of the applicant. It ruled that the register of births was not incorrect, because the applicant was not a co-parent of the child. (Id. at 9.) It stated that, according to German law, the mother of the child is only the woman who gave birth to the child. (Id. at 10; CIVIL CODE § 1591.) German law does not have an  acknowledgement of maternity similar to the acknowledgement of paternity, and the law does not provide for co-motherhood for consensual artificial insemination in a same-sex relationship. (BGH at 10.)

The Court declared that the provision in the Civil Code that contains rules on paternity could not be applied in this case, either directly or by analogy. (Id. at 11; CIVIL CODE § 1592.) The rules on filiation assume that the child has a male and a female parent and do not regulate same-sex parenthood. The Court stated that neither the Act to Allow Persons of the Same Sex to Marry nor the explanatory memorandum for that Act amended section 1592 of the Civil Code or touched upon questions of filiation in general. (BGH at 13.) According to the Court, the provision cannot be applied by analogy, because there is no unintended lacuna. (Id. at 17.) It stated that even though the legislature introduced same-sex marriage to abolish discrimination of same-sex couples, one cannot assume that the legislature forgot to change the rules on filiation. (Id. at 18.) Rules on filiation are regulated separately from the effects of a marriage. (Id. at 19.)

The Federal Court of Justice noted that the German Federal Ministry of Justice and Consumer Protection has a working group that prepared a report on how to reform the rules on filiation, including questions of same-sex parenthood. The report was published several days before the Act to Allow Persons of the Same Sex to Marry was passed. It can therefore be concluded, in the opinion of the Court, that the legislature did not simply forget to address the issue of parenthood in a same-sex marriage. (Id. at 20.) In addition, the recently introduced Draft Act to Adapt the Rules on Filiation to the Act to Allow Persons of the Same Sex to Marry explicitly states that the current paternity presumption has not been extended to the wife of the mother of the child and that there is no possibility for a lesbian couple to acknowledge maternity analogous to the option for men. (Id. at 20; DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE 19/2665, at 1.)

The Court added that the situation of two married women was not similar to that of a married different-sex couple in which the wife had given birth to a child. (BGH at 21.) The legal presumption of paternity is based on the idea that it generally reflects the biological reality. This principle is not called into question by the fact that it might not always reflect the true descent. However, this is not true for the woman who is married to the mother of the child. She is—with the rare exception of the non-comparable cases of man-to-woman transsexuals—never identical with the biological father of the child. (Id. at 22.)

The Court held that the fact that the wife did not automatically become co-parent of the child due to her marriage to the mother of the child does not violate the German Basic Law—the country’s Constitution—or the European Convention on Human Rights (ECHR). (Id. at 24; GRUNDGESETZ [GG] [BASIC LAW], May 23, 1949, BGBl. I at 1, as amended, arts. 3, 6, German Laws Online website; Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] [ECHR], Nov. 4, 1950, 213 U.N.T.S. 221, art. 8, ECtHR website.) In particular, it does not constitute discrimination according to article 3 of the Basic Law. As already pointed out by the Court, the situations are not comparable and the wife cannot be the biological parent of the child. This fact justifies the different treatment of same-sex married couples according to the Court. (Id. at 28.) The Court pointed out that same-sex partners have the option of adopting the child until the law is eventually amended. (Id. at 29.)

The Court ruled that due to the aforementioned reasons, there is also no violation of article 8 of the ECHR, which regulates the right to respect for private and family life, or of the prohibition on discrimination of article 14. There is no factual foundation for a legal presumption that the child descended from the second partner. The Court concluded that the applicants were therefore not in a comparable situation to a married husband and wife in respect of the entries made in the birth certificate at the time of birth. (Id. at 30.)