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D. Parentage law

D. Parentage law

The law of descent regulates who is the Parents of a child. Lines and Grade determine the quality of the parent-child relationship; according to the legal definition in the German Civil Code (BGB), everything depends on the number of mediating births. For example, a child is related to its parents in the 1st degree and in a straight line, and to its grandparents in the 2nd degree, but also in a straight line. There is a connection to the siblings in the collateral line.

German law provides for a maximum of 2 parents, namely the mother and father. The first parent is always the Mrswho gave birth to the child (biological parentage). This is associated with an indispensable and unalterable Maternity (§ 1591 BGB).

The second parent position (Paternity), on the other hand, can be filled in different ways: A Man can establish his relationship of descent to a child by

  • Marriage with the birth mother (§ 1592 No. 1 BGB),
  • by means of Recognition with their Consent (§§ 1592 No. 2, 1595 BGB) or by
  • ascertaining Court order (§§ 1592 No. 3, 1600 d BGB)

establish a child. This is not possible for a wife (or partner of the birth mother); she can only become a parent through (stepchild) adoption.

However, paternity through marriage and recognition is not always based on reproductive biology truths, so that the concept of Ancestry is not exclusively genetically proven, but also - especially as so-called Responsible parenting - can include legal parenthood. The Federal Constitutional Court (BVerfG) refers in this respect to an (at least possible appearing) Collapse from more bodily and legal parenthood, which is impossible for non-binary-sex couples. Against this background, whether a parentage law Equal treatment of wives and husbands, as discussed, is required, even necessary, appears questionable.

Both the Higher Regional Court of Celle and the Court of Appeal (Berlin) consider the current provision in the BGB, according to which only a Man the 2nd parent position, but not a woman, for unconstitutional. They are of the opinion that, in any case, if in a same-sex marriage after an (anonymous) embryo donation the second parent position is vacant would remain, a parent-child assignment would also have to be made to a female second parent (= wife). It should be taken into account that constitutional parenthood established by descent can also be recognised by an equivalent second parent. Voluntary element in addition to the takeover of Responsibility could be justified:

  • OLG CelleParental status cannot be based solely on genetic and biological factors. The BVerfG has made it clear that there cannot be a parental right without a duty towards the child under Article 6 (2) sentence 1 of the Basic Law (BVerfG NJW 2003, 2151, 2153). It is true that the joint contribution of the parents, which is decisive for the creation of the child, cannot be based on the creation of a relationship between the wife and child with regard to the scope of protection of Article 6 of the Basic Law. However, this is to be assessed differently if the declarations of the intended parents are the basis and necessary prerequisite for the creation of the child (OLG Celle NZFam 2021, 352, 363). Constitutional parenthood established by descent can also be established by an (equivalent) voluntary element, i.e. a will to parenthood and the assumption of responsibility: The conception of the child is of existential importance, which is constitutionally relevant (cf. Oldenburg NZFam 2020, 985). Therefore, there is a constitutionally justified duty on the part of the legislator to adopt a statutory structure with regard to the justification and content of the Parental status of same-sex couples. The fundamental right of the child and the wife under Art. 2 para. 1 GG in conjunction with Art. 6 para. 2 sentence 1 GG are currently violated. Following the introduction of same-sex marriage and homogenisation with heterosexual marriage, the comparison groups should be formed anew. Specific allocation criteria of the respective parenthood, if juxtaposed, no longer justify gender-specific unequal treatment of the second parenthood.

In contrast, the Federal Court of Justice had ruled that this was unconstitutional with reference to a Missing regulatory gap rejected. The provision was not unconstitutional because the scope of protection of Article 6 (1) of the Basic Law was not affected. Finally, there are No constitutional necessityto assign an unrelated person to the child as a parent. There was also no unequal treatment within the meaning of Art. 3 para. 1 GG. There was also no analogous application of the standard to wives:

BGH: The wife is not a parent of the child. Rather, she wants this status first obtain. Furthermore, the child's right of personality does not give rise to a constitutional necessity to assign a person who is not physically related to the child as a parent under the law of parentage. This also applies if this person is willing and able to assume parental responsibility. Finally, there is also no unequal treatment within the meaning of Art. 3 Para. 1 GG, as there is an objective reason for the distinction between marriage and the effects of marriage on the one hand and parentage on the other.

The Federal Constitutional Court has announced that it will hear and rule on these issues in the course of 2025.

Dr Oldenburger advises and represents you in all matters relating to parentage law and establishing or contesting paternity. Contact us directly here to arrange an initial consultation. Send him an e-mail at (oldenburger@schneiderstein.de) or use our Contact form.

B. Change of gender identity

1. declaration changes gender identity and entry

§ 2 SBGG (Self-determination law) has regulated since 1 November 2024 that any person of legal age can declare to the registry office that the information on their gender in a German civil status entry should be changed (or entered if it is missing) by replacing it with another of the details provided for in Section 22 (3) of the Civil Status Act or by deleting it. The following are possible: Female, Male, diverse or not specified.

All that is required is a declaration (not in lieu of an oath) that the gender entry now chosen or the deletion of the gender entry best corresponds to the applicant's own gender identity and that the applicant is aware of the consequences of the declaration. The intended change must be submitted 3 months before the declaration to the Registry office and then submitted within 6 months (§ 4 SBGG). The declaration is personally in front of the registrar and to notarise (§ 45b para. 1 PStG). The registry office responsible for the Birth register for the person concerned (Section 45b (2) sentence 1 PStG), otherwise the Registry office. There is neither the authority nor the obligation to examine, but notarisation may be refused if a obvious abuse is in the room. For Germans with habitual residence in Abroad can a German Foreign representation notarise the declaration and send it to the relevant registry office.

Upon request (Demand), the designation of Mother and Father in the birth certificate then in Parent be amended (Section 48 (1a) PStV as amended).

After 1 year, a change of gender entry can be applied for again. Once the gender identity has been changed, it can therefore be changed (repeatedly).

2 Consequences of the change

  • Identity card and Passport become invalid and must be reapplied for and reissued. The German ID card does not contain any information on gender. However, if - as in the vast majority of cases - the first names have also been changed, the identity card must be reissued. In addition to the first names, the German passport also contains the Gender entry so that this must be applied for again if it is required...
  • Official amendment of the entry in the Population registerwhich is informed directly by the registry office about the notarisation of the change of gender entry and first name (cf. Section 57 Para. 4 No. 4 PStV).
  • SHIThe benefits provided by the statutory Health insurance are linked to the individual need for biological and psychosocial circumstances, the registered gender is not relevant.
  • Certificatestraining or employment contracts, driving licences and other comparable documents can be reissued upon request (to the issuer).
  • Penal system: Legislative competence lies with the federal states. The placement of prisoners does not have to be based solely on gender. The Basic Law and the prison's duty of care require the security interests and personal rights of all prisoners to be taken into account when accommodating them. If a prisoner changes the gender entry Male the gender entry in the civil status register, e.g. in FemaleDepending on the individual case, the personal rights and security interests of other prisoners may prevent them from being transferred to a women's prison.

3. special features for minors

From the 14th birthday, a Child can make the declaration of change themselves, but requires the consent of their legal representatives. Proof of counselling must be provided for the declaration (e.g. at the youth welfare office, child and youth psychologist). The (lack of) consent can be replaced by the court if the change is not contrary to the best interests of the child (§ 3 Para. 1 SBGG). In contrast to Section 1666 of the German Civil Code, this is a low-threshold intervention in custody rights. This involves a not insignificant encroachment on the fundamental parental right under Art. 6 para. 2 sentence 1 GG, which should be justified by the personal and self-determination rights of the child.

Children under the age of 14 cannot yet declare a gender change themselves, only their legal representatives can; however, if the child is 6 years or older, they must agree and also declare their wish for a change.

There is no blocking period for a new change of gender entry. This means that children and young people can receive a new gender entry at any time.

4. consequences under parentage law (§ 11 SBGG)

A new gender entry according to the SBGG does not change anything with regard to maternity (§ 1591 BGB) and genetic paternity (§ 1592 No. 3 BGB).

-> § Section 11 para. 1 sentence 1 SBGG: The genderentry in the civil status register is required for the §§ Sections 1591 and 1592 number 3 of the German Civil Code between a person and their children, whether existing or established in the future insignificant.

-> P. 2, 1. Hs.: For the after § 1592 number 1 or 2 legal relationship between a person and his or her children, whether existing or established in the future, is their gender.entry in the civil status register at the time of the child's birth authoritative,

-> 2nd Hsunless she has declared to the registry office during the notarisation of the child's birth that her gender entry prior to making the declaration in accordance with § 2 should be decisive.

Parenthood through Marriage or Recognition thus follows the genderentry in the civil status register for Date of birth of the child, unless it was declared to the registry office when the birth of the child was notarised that the gender entry before submitting the declaration should be decisive.

Entries both as Mother as well as Father can, however, subsequently be transferred to Parent be amended (§ 48 Para. 1 a PStV).

Example: Amira Meier is friends with Max Müller. She becomes pregnant by him. Max recognises the paternity prenatally, Amira agrees. He then changes his gender identity to female and his first name to Maria. Amira gives birth to Jens Torben. Amira is his mother. Who is the father?

-> According to § 1592 No. 2 BGB the recognising party Man. Its recognition becomes effective at the time of birth. According to § 11 Para. 1 S. 2 Hs. 1 SBGG, it depends on the gender entry at the time of birth, i.e. Mary (female).

-> Mary is not Father by Jens Torben. Max' Recognition is ineffective if no declaration in accordance with Hs. 2 has been made. Otherwise Max the father and would be entered in the register, although he is too Mary has become. This entry could then be made by Father in Parent be changed as the name of the Parent remains, however Max. This would have considerable consequences, e.g. when providing proof of parenthood by presenting Jens Torben's birth certificate, in which Mary is not mentioned...

Dr Oldenburger advises on all matters relating to parentage law and changes to gender identities. Contact him directly here to arrange a consultation. Send him an e-mail to (oldenburger@schneiderstein.de) or use our Contact form.

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