In line with an earlier decision on same-sex parents following surrogacy in California, the German Supreme Court (Bundesgerichtshof, BGH) on 20 April 2016 recognized two co-mothers in line with South African law. As part of its decision, the Court also settled the question whether foreign same-sex marriages were to be considered as marriages or as life partnerships under German law. It opted for the lower status, affirming the central importance of marriage’s opposite-sex character.

The case

The claimants were a South-African lesbian couple, one of them also with German nationality. In 2008, they got married under South African law in the form of a civil union, which exists both as marriage and as civil partnership. They decided to have a child through donor insemination, which was born in 2010 to the South African spouse. In 2012, the women asked to have their child’s birth registered in Berlin, Germany and to be both registered as its parents. The civil office denied this request. They brought suit and won at second instance. The civil office appealed to the Supreme Court, which confirmed the second-instance decision.

The legal question

The case turned on the question whether the child was a German citizen; this question, in turn, depended on the question whether the German-South African co-mother was the child’s legal parent and thus able to pass on her German citizenship under the ius sanguinis rule.

A foreign birth is registered in Germany upon request if the child has German nationality (s. 36(1) of the Civil Status Act). Since the birth mother is of South African nationality, the issue was whether the German-South African co-mother had passed on her German nationality to the child under ss. 3(1) no. 1, 4(1) cl. 1 of the Nationality Act. This was the case if the child was legally considered her descendant.

Under South African law, it clearly was; the question was therefore whether German law followed the foreign law or whether this kinship rule was incompatible with German ordre public and its specific rules for same-sex civil partnerships.

Recognizing co-mothers in accordance with South African law

In accordance with art. 19(1) of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB), kinship is determined by the law of the state in which the child is habitually resident – in this case, South Africa. Alternatively, the provision recognizes kinship in accordance with the laws of the country of nationality of the respective parent—here: German and South African—or the laws of the country that governed the marriage at the time of the child’s birth—here, also South Africa. All three alternatives therefore permitted deferring to South African law.

Under section 40 of the South African Children’s Act 2005 (Act 38 of 2005), a child born to one spouse through donor insemination is legally related to the other spouse if that spouse agreed to the donor insemination; this agreement is presumed by law. In accordance with section 13 of the South African Civil Union Act 2006 (Act 17 of 2006), the term “spouse” also includes partners to a civil union, which can be concluded either as marriage or as civil partnership, irrespective of the partners’ genders. Since the two claimants were in a civil union (type marriage), the co-mother was legally related to her spouse’s child under South African law.

The Supreme Court clarified that German citizenship law followed foreign kinship law, even if that law provides for forms of kinship unknown to German law, such as co-motherhood. The limits of this adherence were only met if the recognition of the foreign law collided with German ordre public.

Same-sex marriages as civil partnerships…

The Court first considered a specific emanation of the ordre public principle: the “rights cap” for foreign life partnerships. Under art. 17b(4) EGBGB, these partnerships can only ever attain the rights level established for German registered life partnerships under the LPartG (the only type of union available to same-sex couples), even if the foreign law provides for more rights. Since German law does not allow for co-motherhood, the question arose whether this meant that the South African recognition could not be followed under German law.

In order to answer this question, the Court first addressed a highly contested preliminary issue: whether a foreign same-sex marriage constituted a life partnership or a marriage for the purposes of German international private law. The Court thereby settled a question that had long been disputed. Most courts as well as many scholars treated foreign same-sex marriages as life partnerships, while others argued that they should also be considered as marriages in Germany in accordance with art. 13 EGBGB.

The Supreme Court shared the second-instance court’s view that the civil union (type marriage) constituted a marriage under South African law. Nonetheless, it also agreed that, for the purposes of German international private law, this union constituted a life partnership under section 17b EGBGB.

The Court reasoned that, if foreign same-sex marriages had to be considered marriages under German law, they would have to be considered invalid because the opposite-sex character was constitutive for marriage in Germany. This, it argued, was not the intention of article 17b EGBGB.

To support its view, the Court cites a 1993 decision by a chamber of the Federal Constitutional Court (FCC)’s Second Senate that predates the CJEU’s Maruko decision and the following jurisprudence of the FCC’s First (and then Second) Senate, invalidating a series of discriminatory provisions for life partners in relation to married couples because they had to be considered equivalent for all relevant purposes.

It also cites a 2008 decision of the FCC’s First Senate on marriages with one spouse transitioning, where it decided that: “The legislative interest in maintaining the institution of marriage as a union of man and woman must not in principle take a back seat to the interest of a same-sex married couple to uphold their marriage; equally, the legislature cannot unhesitatingly ignore the interests of a married couple to maintain their existing marriage.” In that decision, however, the FCC recognized not only the legislator’s option of either turning the marriage into a life partnership while retaining all of the benefits associated with marriage, but also the option of leaving it as a marriage. While the FCC emphasized the “acquired rights” of the married couple, the decision undermines the necessity of opposite-sex marriages as much as it affirms the legislator’s “legitimate interest” in retaining them.

The Supreme Court also pointed to the “rights cap” in art. 17b(4) EGBGB (“Kappungsgrenze”), according to which life partnerships concluded abroad did not confer rights above and beyond those granted to German life partnerships. Since further rights granted abroad were therefore no obstacle to recognizing a foreign partnership as life partnership under art. 17b EGBGB, the Court concluded that this also included foreign same-sex marriages.

Citing the development of life partnerships in German law, which the Federal Constitutional Court’s jurisprudence has largely approximated to marriage, the Supreme Court found that a conceptual distinction between both institutions did not preclude substantive parallels; therefore, it should be of no effect if the foreign law called the partnership marriage. Article 17b EGBGB was therefore lex specialis to article 13 EGBGB.

…but no “rights cap” for co-motherhood

The “rights cap” in art. 17b(4) EGBGB, however, raised the question whether South-African same-sex marriages could confer co-motherhood unknown to German life partnerships.

The Court cited criticism of that provision, both with respect to article 9 of the EU Charter of Fundamental Rights (marriage and family) and with respect to its origin in the so-called “gap principle” or “distance principle” (Abstandsgebot). For years, courts and scholars had considered that the special protection of marriage in article 6 of the German Basic Law required that there was a “gap” between the rights level of marriage and that of all other legal unions. The Federal Constitutional Court has since explicitly abandoned this view.

That question, however, the Supreme Court did not settle. Instead, it considered the “rights cap” inapplicable, since co-motherhood was not an effect of the life partnership under section 17b(4) EGBGB. The provision’s character as a special ordre public clause meant it had to be narrowly interpreted. When the provision was introduced in 2001, along with the Life Partnership Act (LPartG), it added, the law of life partnerships was considered to cover only concluding and dissolving partnerships as well as alimony and inheritance; children were not considered. But even for married couples, a father’s legal kinship was regulated in a section separate from marriage’s effects. Although the legislator had introduced the provision on step-child adoption into the Life Partnership Act’s section on the effects of a life partnership in 2004, this could not, the Court argued, change the interpretation of article 17b EGBGB post factum. Therefore, art. 19 EGBGB – on kinship – displaces art. 17b(4) EGBGB.

Lesbian co-mothers also conform to the ordre public

In the case of a gay couple who had brought back a child born to one of the partners through a surrogate mother in California, the Supreme Court has already recognized that same-sex parenthood conferred under foreign law does not as such violate German ordre public (art. 6 EGBGB).

The Court reiterated that same-sex partnerships can be just as beneficial for children as marriages, and that the close ties conferred by biological kinship do not exclude equivalent social parenthood if it is long-term and legally secured.

The Court now confirmed this procedural ordre public jurisprudence also for collisions. Excluding the sperm donor from legal parenthood was in line with German law under s. 1600(5) of the Civil Code. Also, the best interests of the child did not dictate another solution. In particular, the child’s right to know its parentage was not affected.

Assessment: Activism and anachronism

The outcome of this case is not very surprising, as it confirms the 2014 decision on the much more contested matter of surrogacy for another constellation of international private law. The case is more notable for its other holding, namely that foreign same-sex marriages constitute life partnerships for the purposes of German law.

In making this finding, the Court settled a long-standing dispute; however, its decision can be considered the opposite of judicial restraint. The issue only arose as a preliminary question to examining co-motherhood under the “rights cap” provision for foreign life partnerships—a provision which it then considered not applicable to questions of legal kinship. Given this result, it is quite unclear why the Court still made a substantive finding on this matter, rather than leaving it unresolved. At best, the finding must therefore be considered obiter.

Finally, the Court affirms the centrality of opposite genders to marriage – despite the fact that same-sex partnerships and marriage have been largely approximated since the Federal Constitutional Court has considered them equivalent for all relevant purposes. It appears almost anachronistic that the Supreme Court sees equal treatment of foreign marriages as necessarily precluded by that distinction. The Supreme Court avoids a more up to date interpretation of the Constitution by citing outdated or at best ambiguously supportive decisions of the Constitutional Court.

Nora Markard

Sources (in German):

Bundesgerichtshof, decision of 20 April 2016, Case no. XII ZB 15/15

Second-instance decision: Kammergericht Berlin, decision of 2 December 2014, Case no. 1 W 562/13

First-instance decision: Amtsgericht Schöneberg, decision of 8 November 2013, Case no. 71 III 250/13