BGH, decision of the foreign authorities for the German non-binding
Be couples with an unfulfilled child wish with the help of a living abroad, as surrogate parents, not the recognition of the legal motherhood by foreign authorities in the case of Germany As the legal mother, the surrogate mother is regarded under German law the woman who gave birth to the child, decided by the Federal court of justice (BGH) in Karlsruhe, Germany in two on Tuesday, 23. In April 2019, published decisions (Az.: XII ZB 530/17 and XII ZB 320/17). Only if a foreign court and not a public authority has established the legal maternity, because German authorities are bound.
In the first case decided by a couple from the Dortmund area of Germany had helped their desire to have children with artificial insemination. The with the man’s sperm fertilized the ovum of the wife was used a surrogate mother in the Ukraine. While surrogacy is banned in Germany, is this in the Ukraine legally.
The surrogate mother eventually brought in December 2015, the child to the world. They had a notary declared that the German couple should be the legal parents. The Ukrainian registry office had recognised the husband as the legal father and the German wife as the legal mother.
The couple had their child after their return to Germany, to the birth register. The wife was registered as the legal mother. However, when the Registrar learned of the surrogacy, corrected the entry. Legal mother is the woman who gave birth to the child, here so, the Ukrainian surrogate mother is, according to German law.
Without success, the couple pointed out that surrogacy in Ukraine is legal, and the Ukrainian authorities have acknowledged them as a legal parent.
In the second case, the Registrar, the registration of legal maternity in the birth register refused. Here is one from lower Saxony, master, in the end, the couple had also taken the services of a surrogate mother in the Ukraine for the birth of your child.
The Supreme court ruled, in its decisions of 20. March 2019, according to German law, the woman is considered the legal mother, who has born the child. Whether in the specific cases of Ukrainian or German law attack, hanging in the case of minor children, particularly in newborns, of the “ordinary Aufenthalt“ of the caregivers. The respect people have their “habitual Aufenthalt“ in Ukraine, the applicable Ukrainian law. Then the decision of the Ukrainian authorities and later also for the German registry office binding.
However, in both cases, this was not the case, the Federal court of justice. According to the actual circumstances of the stay of the German couples was in the Ukraine only “vorübergehend“ . The surrogate mother to the world-brought-up children should live from the beginning in Germany with their biological parents.
Since no ordinary stay stock in the Ukraine, the recognition of the legal motherhood of the German law. After that, the two husbands were in both cases, the legal fathers of the children. The children would have acquired the German nationality. Legal mothers the surrogate mothers were, as they have brought the children to the world.
In the first case, the Parties had agreed on an Adoption of the child by the wife, stressed the Supreme court. So this a good opportunity to obtain the legal maternity in the way of a to be carried out adoption process. Until then, don’t you, but the surrogate mother as the legal mother.
Already on 5. September 2018 the Supreme court had decided, however, that decisions of a foreign court must be recognized on the legal maternity of the German authorities (Az.: XII ZB 224/17; JurAgentur-message from 9. October 2019). Unlike in the case of decisions of foreign authorities, under German law, binding.
The higher regional court (OLG) of Frankfurt am Main on 28. February 2019 ruled that a surrogacy, an Adoption of the child by its biological mother is opposed, in principle, (Az.: 1 UF 71/18; JurAgentur message from the 13. March 2019). It is crucial that the Adoption will serve the interests of the child and between the mother and the child to have a “close and loving Bindung“ to expect.
Similarly, the Munich higher regional court decided on 12. February 2018 in the case of a gay married couple (Az.: 33 UF 1152/17; JurAgentur-message of 17. May 2018). The Couple was with the help of an anonymous egg donor and one in the Ukraine living surrogate parents. The egg cell had been fertilized with the semen of one of the men
As the other partners wished the Adoption of the child, refused, the youth welfare office and the local court of Munich. The Adoption was not required. The surrogacy according to German law, the law and immoral.
“In the evaluation of the adoption request, it comes only to the Well-being of the child and the prognosis of the occurrence of a parent-child relationship an“, decided by the OLG. Going to fail anyway, the Adoption was an intervention in the rights of the child. fle