Surrogacy in Germany: Favorable Legal Decision

Surrogacy in Germany: Favorable Legal Decision

Victoria Ferrara


Recently in Germany, a high court decision has given recognition to a California judgment of parentage and states that the intended parents who are the legal parents to a child born of a surrogate must be recognized in Germany.

The decision of the Bundesgerichtshof (BGH), the supreme judiciary in Germany for all civil matters, is groundbreaking because it orders German public authorities to validate foreign decisions on family status. With this, the BGH follows the equally misguided decisions of the European Court of Human Rights in the cases of Menesson v. France and LabassǸe v. France, which were based on similar facts.

The facts are as follows: In August 2010, a gay couple had a child through surrogacy in California. According to the gestational surrogacy agreement, one of the intended parents was the genetic father and the embryos were created using an egg donor. In addition to this, the paternity of the intended parents was recognized with the consent of the surrogate, in San Francisco before the birth.

The California Superior Court issued an Order recognizing the intended parents as the legal parents of the baby. The gestational surrogate had no parental rights. After the child was born in May 2011, the intended parents traveled home to Berlin where they were living with their child. The parents applied to register the foreign birth at the registry office. The registry office rejected the application. The denial was upheld in two lower courts.

Following this, the intended parents appealed and the appeal was successful. The Order from the appeal provides that the intended parents are the legal parents of the child. The Court highlighted the particular right of the child to be able to establish a legal parent-child relationship under certain circumstances. If the recognition of the California judgment is denied, it would be detrimental to the child and would cause harm to the family relationships.

As a result of the recognition of the child's right to family and stability, the foreign (California) judgment of legal parentage is given legal effect and recognition. The intended parents are the legal parents of the child, and because of this, the child's birth may be entered in the register of births.

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