Surrogacy being forbidden in Germany, gay couples have been venturing abroad to have biological children, including to California. There, it is both legal to hire a surrogate mother and possible for both men to be recognized as fathers. However, upon return to Germany, it is often difficult to have such court decisions recognized, as the lower German courts have been divided over whether this would violate German ordre public. The German Federal Court (Bundesgerichtshof, BGH) has now resolved this issue in favor of the intended fathers, in line with the recent surrogacy cases of Mennesson v. France and Labassée v. France (both of 26 June 2014). It emphasized the right of the child under Article 8 ECHR to a legal relation to those parents desiring to take care of it and rejected as insufficient the motive of preventing circumvention of domestic prohibitions of surrogacy.

The case

The case concerned two men in a registered life partnership who had concluded a surrogacy agreement with a Californian single woman. One of the men donated the semen, the egg cell was obtained through an anonymous donation from an unknown woman. In September 2010, the surrogate mother became pregnant with twins, one of whom aborted spontaneously in the 30th week. In December 2010, the biological father acknowledged paternity before the German consulate in San Francisco and declared joint custody with the surrogate mother. In April 2011, the Californian Superior Court recognized the two men as fathers of the unborn children, at the exclusion of the surrogate mother. The surviving child was born in May 2011 and travelled back to Germany with its fathers four weeks later. The registrar’s office refused to certify the birth abroad, the lower courts upheld this decision based on ordre public.

The legal situation

Except in cases of trans* parenthood, German law knows only different-sex parents by birth: the child’s mother is the woman who gave birth to it (excluding the genetic mother in case of donated eggs), and the father is the man who is married to the mother, who acknowledged paternity, or who successfully challenged another man’s paternity as the biological father. Same-sex partners of biological parents have no choice but to adopt the baby as a step-child – which can pose significant problems for female couples using a private donor, if the donor changes his mind. However, a parental assignment based on a contract is not entirely foreign to German law, as it exists in case of fathers using sperm donors.

Surrogacy is forbidden because the legislator considered it a drastic intervention into the personality of children born in this manner, but also of the surrogate mothers, as well as the mother-child relation which begins during pregancy. The legislator considered that this special relation was incompatible with surrogacy as a service. Moreover, the surrogate mothers and the children had to be protected against health and psychological risks after birth. For children, this concerned an untroubled self-discovery and a secured familiar attribution; for women, it concerned preventing degrading conflicts resulting from the service, as well as disputes over handing over the child. In particular, disputes could arise where the child was handicapped and the “ordering parents” did not want to accept it; if the mother did not want to give up the child after birth; or if the issue of abortion arose during pregnancy.

The decision

The Federal Court decided that the Californian paternity decision had to be recognized in Germany under section 108 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG) — at least where one of the parents was biologically related to the child.

The surrogate mother being unmarried, the biological father is also the father under German law. But the Court also saw no obstacle to recognition for his partner as co-father. Section 109 FamFG forbids such recognition in particular "when recognition of the judgment would lead to a result that is obviously incompatible with significant principles of German law, in particular when recognition is incompatible with fundamental rights.” The Court considered that German ordre public was not violated in constellations where one father was biologically related to the child, unlike the surrogate mother; it made no claims for different situations.

First of all, the fact alone that a same-sex couple was assigned parentage could not be a reason for a violation of ordre public, as life partners can be just as beneficial for the child as parents as can married partners (Federal Constitutional Court, Successive adoption case, 2013). While the double genetic kinship of opposite-sex parents may create a stronger bond, this did not exclude a socially equivalent parentage by life partners if it is to be permanent and if it is legally established.

While fundamental rights (as considered by the legislator in prohibiting surrogacy) can militate against recognition under s. 109 FamFG, they can also militate in favor. Here, the Court based its considerations in particular on two recent ECtHR cases, Mennesson v. France and Labassée v. France (both of 26 June 2014), which concerned opposite-sex couples using surrogate mothers. The ECtHR had stressed that, when deciding on parental status, the privacy right of the child under Article 8(1) ECHR had to be taken into consideration, which includes the right of the child to form a legal parent-child relation, as "an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned” (Mennesson, para. 96):

"99.  The Court can accept that France may wish to deter its nationals from going abroad to take advantage of methods of assisted reproduction that are prohibited on its own territory […. H]owever, the effects of non-recognition […]  are not limited to the parents alone, who have chosen a particular method of assisted reproduction prohibited by the French authorities. They also affect the children themselves, whose right to respect for their private life – which implies that everyone must be able to establish the substance of his or her identity, including the legal parent-child relationship – is substantially affected. Accordingly, a serious question arises as to the compatibility of that situation with the child’s best interests, respect for which must guide any decision in their regard.

100.  This analysis takes on a special dimension where, as in the present case, one of the intended parents is also the child’s biological parent. Having regard to the importance of biological parentage as a component of identity […], it cannot be said to be in the interests of the child to deprive him or her of a legal relationship of this nature where the biological reality of that relationship has been established and the child and parent concerned demand full recognition thereof. […] The Court considers, having regard to the consequences of this serious restriction on the identity and right to respect for private life of the [children], that by thus preventing both the recognition and establishment under domestic law of their legal relationship with their biological father, the respondent State overstepped the permissible limits of its margin of appreciation.

101.  Having regard also to the importance to be given to the child’s interests when weighing up the competing interests at stake, the Court concludes that the right of the [children] to respect for their private life was infringed."

The German Federal Court followed this jurisprudence quite closely. It considered that, while the legislator’s reasons were relevant for the ordre public assessment, in the present case the child was already born, and its rights and interests had to be taken into consideration. The position of the surrogate mother and her relationship to the child was of particular concern where she did not wish to give up the child; here, however, she did so freely — as properly established by the foreign court —, in the same manner as agreeing to an adoption. (Where this was not the case, her dignity could be at stake.) Therefore, the best interests of the child and its right to legal assignment to both parents were paramount.

The Court found that the child’s right to a legal parent-child relation under Art. 8(1) ECHR would be violated if it were denied the legal assignment to the intended co-father. The “limping” legal relation to the surrogate mother, not valid in her home country, was not sufficient. This prevented the national legislator from denying recognition solely to prevent “circumventions” of the domestic prohibition of surrogacy. Moreover, unlike the surrogate mother, the intended parents wished to assume the parental position and to provide the child with the necessary loving care.

The compatibility of this result with German ordre public, the Court argued, was demonstrated by fact that the same result could also be achieved by way of step-child adoption. However, being able to later decide whether or not to adopt the child introduced additional risks for the child, who — unlike in adoption cases — would not have been born but for the co-parents’s wish. The co-parents should therefore be bound even if the child was handicapped, or if they separated, or if they regretted their decision.

Finally, the right of the child to know its descent was not a reason to deny recognition to the foreign judgment, as the law on civil status was solely concerned with legal parentage, not with knowledge of biological facts.

Assessment

The decision affords more clarity to same-sex couples using surrogate mothers, preserving both their parental rights and the rights of the child that has already been born, in line with recent ECtHR jurisprudence. While surrogacy is a highly contested practice that raises severe concerns over the commercialization of the female body and free decision-making in situations of economic distress, the rights and best interests of the child, once born, must be paramount. These interests will usually require the recognition of a legal bond with the co-parent who had declared the wish to assume parental responsibility in the surrogacy agreement.

Nora Makard

The decision of 10 December 2014 is available here (only in German).