Surrogate mother does not become a mother under German law

A married German couple in the Ukraine have been able to use a Surrogate mother carry a child to term and give birth. After the birth, the German intended parents applied to the competent Local court in Kiev, Ukrainethat her parenthood of the child born to the surrogate mother should be established by a court. The Kiev District Court examined the conditions for participation, the course and the legal consequences of the surrogacy programme carried out in Ukraine. It has establishedthat the German intended parents were permitted to use reproductive medical measures with the help of the surrogate mother and have a child carried to term. It also established that it was not the surrogate mother but the German intended parents, and in particular the intended mother, who became the legal parents of the child. This corresponds to the Ukrainian legal situation and is already documented on the basis of the birth certificate issued and the entries in the Ukrainian register. Irrespective of this, however, the court independently established the Status of the intended parents as legal parents fixed.

Despite the fact that a foreign decision such as that of the Local Court of Kiev is to be recognised in Germany, the intended parents have decided to have these legal consequences recognised by means of an independent Recognition proceedings pursuant to Section 108 (2) FamFG to have it established. The competent family court in Brühl then reviewed the Ukrainian parentage decision, confirmed the eligibility for recognition and found no obstacles to recognition arising from Section 109 Para. 1 No. 4 FamFG. In particular, the surrogate mother's participation was voluntary, there were no recognisable violations of her dignity, and the transfer of the child was carried out without pressure or further involuntary actions. Therefore, the Ukrainian Decision in Germany formally recognised.

The effects of such recognition are generally provided for in Section 107 (9) FamFG in such a way that the judicial declaratory decision for courts and administrative authorities Binding is.

The parents then applied to the German Birth register to be registered as the parents of their child. The registry office rejected this and applied to the Cologne District Court to answer the question of whether the parents could be entered as parents in the register of births despite the birth of the child by a surrogate mother. In addition, the registry office was unsure as to whether, due to the Ukrainian decision issued after the birth of the childeven if this has been recognised in Germany, as is the case here, the surrogate mother does not have to be registered first. The registry office was of the opinion that the decision issued after the birth gave reason to document the fact of the birth by the surrogate mother in accordance with German law and then to register the intended mother as the legal mother as part of a subsequent certification.

The Cologne Local Court (AG Cologne, decision of 3 January 2024, Ref.: 378 III 175/23) clarified that the foreign decision from Ukraine had declaratively established parenthood with reference to the birth of the child. The Date of this decision does not change the effect of legal parenthood. The legal situation is by this decision, according to the Cologne District Court, has not been subsequently changedat no time had the surrogate mother been assigned to the child as the mother. This corresponds to the Ukrainian legal situation as established in Germany within the framework of the binding effect of the recognised local court decision.

Although the Civil Status Ordinance states that subsequent certifications must be documented in the event of subsequent changes to the civil status, this regulation refers to the following only to changes in the context of Adoption procedure. This was because the mother had initially had legal parental status, which was extinguished by the subsequent adoption and transferred to the new, adoptive mother.

With regard to the case law of the Federal Court of Justice it is certain that prenatal foreign court decision, the legal effects of parenthood in relation to the birth also lead to the entry of the intended parents in the German register of births (BGH StAZ 2022, 147). However, the same also applies to postnatal decisions, since their Extension of effect should not be judged differently. The court had examined and established the effects of legal parenthood at the time of the child's birth according to its own legal position, irrespective of the time of the decision itself. The surrogate mother had never been or become a mother. A subsequent certification is therefore ruled outas the decision, including the subsequent recognition decision in Germany, did not result in any legal change to parenthood.

Although the Federal Court of Justice has not yet clarified the question of the extension of the effect of a postnatal foreign status decision, and in particular has not equated it with a prenatal decision, the statements of the Local Court of Cologne are convincing and correct, as it has made a judicial determination of parenthood with reference to the birth of the child and thus the child's birth. right from the start which was not subsequently corrected by this decision. At most, something different could apply with regard to countries in which, after surrogacy, the surrogate mother is first legally registered as the mother and entered on a birth certificate. The legal parenthood can then be corrected by a court decision. In these cases, a subsequent change in the law should be considered, but not in cases where the intended parents were the sole legal parents from the outset.

 

Dr Marko Oldenburger

Specialist lawyer for family law

Specialist lawyer for medical law