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Germany: Non-Biological Father Who Agrees to Artificial Insemination Is Liable for Child Support

(Nov. 6, 2015) On September 23, 2015, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that a man who agreed to the artificial insemination of his girlfriend with another man’s donor sperm will be contractually liable for child support even though he was not married to the mother of the child and did not acknowledge the child after its birth. The Court construed the man’s consent to the artificial insemination as including a contract for the benefit of a third party – the child in question – which results in the duty of the man to provide child support comparable to the duty of a legal father. (BGH, Sept. 23, 2015, docket no. XII ZR 99/14, BGH website.)

Facts of the Case

The mother of the child and the defendant, who were not married, had been in an intimate relationship without living together from 2000 until at least September 2007. The mother wanted to have a child, but the defendant was sterile. A doctor therefore performed an artificial insemination with sperm from a third person (heterological insemination) on July 23, 2007. The defendant had consented to the insemination and had procured the donor sperm. The defendant had noted on an emergency contact form provided by the doctor that he agreed to be liable for all consequences of an eventual pregnancy and that he assumed responsibility. The July 23 procedure was unsuccessful, however. (Id. ¶ 2).

Two more heterological inseminations were performed in December 2007 and in January 2008, and the last one proved successful. The child, the plaintiff in the case, was born on October 18, 2008. The defendant paid for baby equipment and for child support from October to December 2008. He did not acknowledge the child and become its legal father. An earlier civil suit to establish the defendant’s paternity was unsuccessful, because he is not the biological father of the plaintiff. (Id. ¶ 3.)

In the recent suit, the plaintiff sought contractual support payments in an amount equal to the statutory child support. This suit is an appeal of the decision of the Higher Regional Court of Stuttgart, which ruled against the plaintiff on September 4, 2014. (Id. ¶ 3.)

Decision 

The Federal Court of Justice held that the consent of the defendant to the heterological insemination also created a contract for the benefit of a third party – the plaintiff – as codified in section 328, paragraph 1, of the German Civil Code. That provision states that a third party beneficiary acquires a contractual right to demand the performance directly. (German Civil Code (Jan. 2, 2002, as amended), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; 2003 BGBl. I at 738, GERMAN LAWS ONLINE.) The contract for the benefit of the child resulted in a duty of the defendant to provide child support like a legal father, even though he was not the biological father and did not acknowledge the child. Without the defendant’s consent to the heterological insemination and his participation by procuring the donor sperm, the child would not have been born. (BGH, XII ZR 99/14, ¶¶ 21 & 25.)

The Court further held that the defendant’s consent to the heterological insemination was equivalent to the consent mentioned in section 1600, paragraph 5, of the German Civil Code, which states that the mother and the legal father who agreed to conceive a child by means of heterological insemination cannot contest paternity. The Court noted that the legislative intent behind enacting that section was to give children born in and outside of marriage equal rights with regard to child support and in other areas like inheritance law and citizenship law. (Id. ¶¶ 17 & 22.) It said that the goal of the legislation has only been partially achieved, because a married man is automatically presumed to be the legal father, whereas an unmarried man needs to actively acknowledge the child before gaining the status of legal parent. The obligation to pay child support for a man who agreed to the heterological insemination can therefore not depend on the acknowledgment of the child and the man’s status as the legal father. (Id. ¶ 22.)

The Court stated that a man who consents to the heterological insemination of a woman has to declare this intent to the woman. The Court opined that it suffices if the man declares his intent to the doctor who performs the heterological insemination and if this intent is then made known to the woman. It held that no special form was required for the declaration of intent, unlike for the acknowledgment of a child (id. ¶¶ 13 & 14) which has to be recorded by a notary public. (German Civil Code, § 1597, ¶ 1.)