“Wife of a mother is not automatically deemed legal co-parent of newborn child”: Germany’s Top Court

In a case involving a same-sex couple, the Federal Court of Justice of Germany, Germany's highest court of civil and criminal jurisdiction, had to deal with the question “Whether the wife of the mother giving birth to the child (alone) because of the existing marriage as an additional parent of the child is to be entered in the birth register.”

Responding to the question, on October 31, the Court ruled that “The wife of a mother is not automatically deemed the legal co-parent of a newborn child”. The Court stated this because the same applies to different sex couples’ marriage and not for same-sex couples.

The child's mother and the claimant had been living in a registered civil partnership since May 2014. After the country legalized same-sex marriage in Germany in October 2017, they [mother and claimant] completed their marriage by converting this partnership. Thereafter, a month later, i.e., on November 3, 2017, the child was born by medically assisted Artificial Insemination with donor sperm. However, in the birth register, the mother was registered but not her wife as another parent.

The birth registry is not incorrect because the wife of the child's mother did not become the legal parent of the child at birth. The sole parent status under or according to § 1592 No. 1 BGB is excluded, because this provision is neither directly nor analogously applicable to the marriage of two women.

§ 1592 BGB Paternity states that “The father of a child is the man: who is married to the mother of the child at the time of birth; who has recognized the paternity; or whose paternity is according to § 1600 d or § 182, paragraph 1 of the law on the procedure in family matters and in matters of voluntary jurisdiction.

The Court noted that although the country had legalized same-sex marriage in October 2017, the legislator has not (yet) changed the right of descent.

The Court thus said, “The direct application of § 1592 No. 1 BGB is already out of the question because the norm regulates paternity and assigns it to a specific man on the basis of a refutable presumption. The descent rules of §§ 1591 ff. BGB continue to deal with the parent-child assignment to a mother and a father. The law assumes that the child is assigned to two parents of different sex, based on the fact that a child has one male and one female parent.”

The Court added, “The provision is also not applicable because the conditions for an analogy are not met. The law does not show any unjustified regulatory gap on the issue of co-parenting in same-sex couples... In addition, there is also a lack of comparability of the same-sex marriage of two women with the parentage of the man married to the child's mother regulated by § 1592 No. 1 BGB. For the paternity by marriage is based on the fact that this legal parent-child assignment also reflects the actual descent regularly. On the other hand, the rebuttable presumption of paternity on which the statutory provision is based is by no means justified for the woman married to the child's mother.”

The Court further observed, “The existing legal situation does not violate the Basic Law or the European Convention on Human Rights. In particular, it does not constitute a difference in treatment within the meaning of Article 3 (1) of the Basic Law that, unlike a husband, the spouse of the child's mother is not the legal parent of the child by virtue of the marriage at birth. Rather, the situation is different insofar as the wife can be a purely biological non-biological parent of the child. This difference justifies the deviant treatment of same-sex and mixed-sex couples and their children under the right of descent.”

Based on the above facts, the Court thus concluded that the wife of a child's mother remains therefore in any case up to a new law on an adoption referral in accordance with § 1741 para. 2 sentence 3 BGB in order to get into the legal parent position.