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BGH: Decision of foreign authorities not binding for German
If couples with an unfulfilled desire to have children still become parents with the help of a surrogate mother living abroad, the recognition of legal motherhood by foreign authorities in Germany usually does not apply. According to German law, the legal mother is the woman who gave birth to the child - i.e. the surrogate mother, decided the Federal Court of Justice (BGH) in Karlsruhe in two decisions published on Tuesday, April 23, 2019 (file number: XII ZB 530/17 and XII ZB 320/17). German authorities are only bound by this if a foreign court and not an authority has established legal maternity.
In the first decided case, a couple from the Dortmund area had helped with the desire to have children with an artificial insemination. The wife's egg cell fertilized with the man's semen was used for a surrogate mother in Ukraine. Surrogacy is illegal in Germany, but legal in Ukraine.
The surrogate mother finally gave birth to the child in December 2015. She had notarized that the German couple should be the legal parents. The Ukrainian registry office recognized the husband as a legal father and the German wife as a legal mother.
Registration corrected registration
The couple had their child registered in the birth register after their return to Germany. The wife was also registered as the legal mother. But when the registry office found out about the surrogacy, it corrected the entry. According to German law, the legal mother is the woman who gave birth to the child, here the Ukrainian surrogate mother.
The couple unsuccessfully pointed out that surrogacy was legal in Ukraine and that the Ukrainian authorities recognized her as legal parents.
In the second case, the registry office also refused to register legal maternity in the birth register. Here, too, a couple from Lower Saxony had used the services of a surrogate mother in Ukraine for the birth of their child.
In its decisions of March 20, 2019, the BGH ruled that under German law, the woman who gave birth to the child is the legal mother. Whether Ukrainian or German law applies in specific cases depends on the "habitual residence" of the caregiver in the case of minors, especially newborns. If the caregivers have their “habitual residence” in Ukraine, Ukrainian law applies. Then the decision of the Ukrainian authorities would later be binding on the German registry office.
But in both cases, this is not the case, according to the BGH. According to the actual circumstances, the German couples' stay in Ukraine was only “temporary”. The children who were born by surrogate mother should live in Germany with their biological parents right from the start.
Legal mothers are surrogate mothers
Since there was no habitual residence in Ukraine, German law applies to the recognition of legal motherhood. According to this, the two husbands are the legal fathers of the children in both cases. The children would also have acquired German citizenship. Legal mothers are surrogate mothers because they gave birth to the children.
In the first case, the parties agreed on an adoption of the child by the wife, the BGH emphasized. This gives them good chances of obtaining legal maternity through an adoption procedure. Until then, however, it is not her, but the surrogate mother who is the legal mother.
Already on September 5, 2018, the BGH had already decided that decisions by a foreign court on legal maternity must be recognized by the German authorities (file number: XII ZB 224/17; JurAgentur announcement of October 9, 2019). Unlike decisions by foreign authorities, these are binding under German law.
The Higher Regional Court (OLG) Frankfurt am Main had ruled on February 28, 2019 that surrogacy does not in principle prevent an adoption of the child by his biological German mother (Az .: 1 UF 71/18; JurAgentur announcement of March 13, 2019) . It is crucial that the adoption serves the child's best interests and that a “close and loving bond” can be expected between the mother and the child.
The OLG Munich made a similar decision on February 12, 2018 in the case of a gay married couple (Az .: 33 UF 1152/17; JurAgentur announcement of May 17, 2018). The couple became parents with the help of an anonymous egg donation and a surrogate mother living in Ukraine. The egg cell had been fertilized with the semen of one of the men
When the other partner requested the adoption of the child, the youth welfare office and the district court in Munich refused. The adoption was not necessary. Surrogacy was illegal under German law and immorality.
"When assessing the adoption request, it is only a question of the child's well-being and the prognosis of the development of a parent-child relationship," decided the OLG. If the adoption is nevertheless refused, there is an interference with the rights of the child. fle