Since only married couples have access to heterologous insemination in Germany, same-gender female couples often resort to the ‘cup method’ at home. For sperm bank donors, it is assumed that they waive all parental rights by wishing to remain anonymous. The Federal Supreme Court (Bundesgerichtshof) decided that this assumption cannot be applied to private donors without more, thus making it more difficult for female couples to form a legal family. These couples have to reckon with sperm donors changing their minds and preventing the adoption – a problem that only exists because, unlike husbands, registered partners do not automatically become legal co-parents of children born into the partnership.

The case

The case concerned two women in a registered life partnership who had gone through a private sperm donor to have a child. The birth mother’s life partner applied for ‘step-child adoption’ under s. 9(7) LPartG, but declined to reveal the donor’s identity who, both women claimed, wished to remain anonymous. The lower courts found that the donor had to consent to the adoption and that the procedure could not be carried out without his participation.

The Supreme Court confirmed that the donor had to be informed of the adoption procedure in order to be able to assert his rights, and that the court could not simply rely on the co-mothers’ statement that he consented to the procedure. However, it clarified that his consent was only needed if he actively participated in the procedure by showing that he might be the biological father of the child; if he did not do so, he implicitly waived his rights.

The legal situation

For heterosexual couples, heterologous insemination is relatively straightforward. They can go through a doctor and obtain donor semen from a sperm bank. The husband automatically obtains legal paternity of his wife’s child (s. 1592 no. 1 BGB), and the unmarried partner can acknowledge paternity (s. 1592 no. 2 BGB). Neither he nor the mother can contest this status (s. 1600(5) BGB); the donor’s participation in such a procedure, in which he wishes to remain as anonymous as legally possible, is seen as implicit waiver of all parental rights.

For same-gender couples, having a child is much more complicated. First of all, since they cannot get married in Germany and since German medical guidelines only permit heterologous insemination for married or heterosexual unmarried couples couples, they do not have access to sperm banks. This is true even for couples who got married abroad, as they will be treated like life partners in Germany. Their only avenue therefore is to organize the sperm donation and insemination privately (so-called ‘cup method’). Secondly, the birth mother’s spouse is not automatically a co-parent of the child, but has to adopt the child in accordance with s. 9(7) LPartG. This, thirdly, raises the question of the sperm donor’s legal position in the adoption procedure.

In a 2013 ‘cup method’ case, a mother had gotten another man to acknowledge paternity (s. 1594 BGB), after the sperm donor had allegedly changed his mind about consenting to an adoption by her spouse; the donor claimed it had been agreed that he should have parental rights. The Supreme Court allowed the donor’s contestation of paternity because the legal father had no socio-familial relationship with the child (s. 1600(2) BGB). In that case, the court had not considered all parental rights waived, as it was uncontested that it had been agreed that the child should learn the donor’s identity.

A man can contest another man’s legal paternity by declaring ‘in lieu of an oath that he had sexual intercourse with the mother of the child during the period of conception’, s. 1600(1) no. 2 BGB. The German term ‘beigewohnt’ properly translates as ‘having laid with’ the woman. In the 2013 case, the Supreme Court did not decide whether this also covered ‘cup method’ insemination, as the ‘Beiwohnung’ criterion only served to prevent unsubstantiated claims, and the donor’s biological paternity was uncontested in the case at hand.

The decision

The Supreme Court started from the fact that a step-child adoption under s. 9(7) LPartG requires the consent of the other parent in accordance with ss. 1747, 1747 BGB, even though these provisions were not explicitly mentioned in s. 9 LPartG. Unless there is a legal father, the man who declares having ‘laid with’ the mother during the period of conception is considered the father, s. 1747(1) taken with s. 1600(1) no. 2 BGB. The Court again refrains from deciding whether this also covers donors; it merely points to the fact that these provisions serve to indicate the possible father and to accord him the opportunity to participate in the adoption procedure. S. 1747(1)’s reference to s. 1600(1) no. 2 was introduced in 1997 to protect the biological father from being definitively excluded from legal paternity by a third-party adoption, as required by the ECtHR’s 1994 Keegan judgment. This protection interest, the Supreme Court considered, also held in the case of a sperm donor.

In the case at hand, the female couple asserted that the donor wished to remain anonymous; the Court might therefore have considered that he had waived his rights in the same way as a sperm bank donor. However, the Supreme Court agreed with the lower courts that this fact needed to be ascertained in the procedure and cannot be considered established by relying on the mother’s assertions. This, of course, means that the donor has to be involved in the adoption procedure.

The Supreme Court tempered its judgment by clarifying that enough is done by informing the donor of the procedure; if he does not participate by substantiating his possible paternity, his interests will be considered not in need of protection.

However, to this end, the courts have to do everything within their power to establish the donor’s identity and abode, including asking the mother and her spouse to cooperate (s. 27 FamFG). This is not necessary if the donor’s abode is permanently unknown (s. 1747(4) BGB), but this cannot be considered the case if it is known to the mothers. In a 2014 case, the Supreme Court had obliged a mother to provide details of her former lovers to a man who had established that he was not the biological father of her child, so that he could reclaim alimony from the actual biological father. It had, however, cautioned that this obligation may be unreasonable in individual cases, which it also affirmed in the present judgment.

Finally, the Court did not find involving the donor dispensable for constitutional reasons. In particular, it held, the difference in treatment between a mother’s life partner in comparison with her husband was not without justification, as the husband could (and usually would) be the child’s biological father. This, the Court added, was also true for a man who acknowledged paternity. The fact that the adoption procedure contained obstacles was simply to protect a possible father’s constitutionally protected interests in being able to claim legal paternity.

Assessment

The decision seeks to strike a balance between protecting the donor’s ability to claim legal paternity and reducing obstacles to step-parent adoption to the necessary minimum. However, the Court’s reasoning has a gaping hole: It does not settle whether the donor would be able to claim paternity by declaring to have ‘laid with’ the mother at the time of conception – but this possibility is the precondition of the interest protected by involving the donor in the adoption procedure. If a ‘cup method’ donor were unable to claim paternity anyway, he would not need to be enabled to prevent an adoption which would ultimately exclude him from doing so.

Interestingly, the Court does not consider whether the donor might still be able to assert his paternity after the adoption. It is generally considered that an adoption does not exclude the contestation of paternity on genetic grounds; however, a socio-familial relationship between the legal father and the child does (s. 1600(2) BGB); a biological father is not allowed to break up a functioning social family. It is unclear whether a socio-familial relationship would also exclude contestations in the case of an adoptive co-mother, as the law only speaks of ‘the father’. It must be inferred that the Court assumes that she, too, will be protected against the intrusion of a biological father, despite the law’s heteronormative language.

Furthermore, the Court does not take into account that these uncertainties only arise for female couples because they cannot use sperm banks and because the mother’s life partner does not automatically obtain legal parenthood. Both of these facts are instances of persisting discrimination against same-gender couples in the area of reproductive rights. The court’s equality analysis is half-hearted at best. Neither does it take these particular problems into account, nor does it admit that a father who acknowledges paternity may not be the father; if that man consents to a step-child adoption, the possible biological father will also never hear of the adoption and will never be able to assert his rights.

By seeking to preserve the possible rights of a biological father, the Court subjects female couples to further uncertainties above and beyond their exclusion from medically assisted reproduction. If they use another man’s sperm, they have to reckon with him changing his mind about giving up paternal rights, or claiming a different sort of agreement – in particular if they do not want to keep his identity a secret to the child. This situation can only be remedied by reliably excluding private sperm donor from being able to contest or claim paternity, and by permitting automatic co-maternity for children born into a registered partnership.

The decision of 18 February 2015, docket no. XII ZB 473/13, is available here (in German only).

The press release of 27 March 2015 is available here (in German only).

Nora Markad