In 2017, same-sex couples in Germany were granted the right to marry. While the legislator’s decision was celebrated at the time, much remains to be done. In particular, the law of parentage still does not adequately reflect the fundamental rights of same-sex couples and their children. Decisions from two German courts challenge this legal situation. The proceedings have been stayed for a decision by the German Constitutional Court.
Under German Law, the legal mother of a child is the woman who gave birth to the child (Section 1591 German Civil Code). Furthermore, according to Section 1592 (1) German Civil Code, the father of a child is either the man who is married to the mother (no.1) or the man who has acknowledged paternity (no. 2) or whose paternity has been judicially established (no. 3).
These provisions still reflect the traditional idea that genetic, gestational, social, and legal parenthood typically coincide. However, they are no longer adequate for family life in the 21st century. Due to new reproductive technologies (e.g. egg or embryo donation), it is now possible that the woman who gives birth to a child is not genetically related to this child. Furthermore, as couples increasingly rely on artificial insemination using a donor’s sperm, legal and genetic parenthood can similarly deviate on the father’s side.
For many same-sex couples, the rapid developments in assisted reproduction have opened new opportunities to have children on their own. Nevertheless, German Law has yet to catch up. For example, as the law currently stands, the mother’s wife or partner (unlike the husband in an opposite-sex marriage) is not automatically granted the status as legal parent. Rather, the mother’s wife can only become the legal parent by means of adoption (Sections 1741 et seq. German Civil Code). Thus, contrary to other European countries, German law does not yet recognise the so-called “co-motherhood”, whereby the partner or wife of the biological mother is automatically recognised as second legal parent.
Two recent court decisions challenge this legal situation. On 24 March 2021, the Higher Regional Court Celle (“Oberlandesgericht”) announced that it would stay proceedings for a decision by the German Constitutional Court regarding the question whether Section 1592 Civil Code is compatible with the German Constitution (“Basic Law”). Only one day later, the Higher Regional Court Berlin (“Kammergericht”) announced that it too would refer this question to the Constitutional Court.
While both courts agree that the current rules on legal parentage are not in line with the fundamental rights of same-sex couples and their children, their reasoning slightly differs. The Higher Regional Court Celle mainly focuses on the parental rights and responsibilities set forth in Art. 6 (2) Basic Law. By contrast, the Higher Regional Court Berlin concentrates on the general principle of equality guaranteed in Article 3 (1) Basic Law. In the court’s view, Section 1592 Civil Code leads to unequal treatment of children conceived through medically assisted insemination. This is because depending on whether a child is born into an opposite-sex or same-sex marriage, the child will have two legal parents or only one.
It is striking that both courts refrained from examining the compatibility of Section 1592 Civil Code with Article 3 (3) Basic Law (“no person shall be favoured or disfavoured because of sex”). After all, the mother’s wife is denied the status as legal parent only because she is a woman. This would already be sufficient for a claim of sex-based discrimination in terms of Art. 3 (3) Basic Law. However, as Section 1592 Civil Code clearly reflects a heteronormative notion of parenthood, it should also be assessed whether the current legal situation discriminates on grounds of sexual orientation. While the German Constitutional Court has ruled that “sex” as ground for discrimination also includes “gender identity”, it is still disputed whether the same holds true for “sexual orientation”. One can hope that the Constitutional Court will seize the opportunity to clarify this important constitutional question.
Overall, there is significant reason to conclude that the current legal rules on parentage are not in line with the fundamental rights of same-sex couples and their children. Thus, four years after the introduction of equal marriage, it is time that the German legislature establishes equal parenthood.