parentage and citizenship

German law prohibits surrogacy but recognizes a US Parentage Order/Judgment to establish paternity of a married couple (gay and straight) so long as one parent has a biological connection to the child.[1]

I. Married couple, one parent with Biological Connection to the Child

In order for a German civil registry office to register the Intended Parents as legal parents of the child in the German birth register, as of now, the following requirements need to be met:

Valid Surrogacy Agreement
The parties must have signed a surrogacy agreement that meets all the requirements of the Country in which it was executed.
Marital Status
It seems the couple needs to be married.
Biological Connection
At least one the Intended Parents’ gametes must have been used in order to create the embryo. In the cases that have been decided by the German Supreme Court, the Intended Father’s sperm had been used to create the embryo. It is unknown how the German Courts would handle a biological connection created by the Intended Mother’s ova only. A Higher Regional Court decided that a foreign entry in the birth register (in this case Ukraine) has to be recognized in Germany to establish the genetic father’s and the genetic mother’s paternity. The requirements in this case were (i) a genetic connection of both the father and the mother, (ii) father’s recognition of paternity in front of a Germany embassy and (iii) that the Surrogate acted voluntarily.[2]
Legal Recognition of the Child
The Intended Father whose sperm was used has to legally recognize the child before a German Consulate (this should be done while the Surrogate is pregnant), with the consent of the Surrogate. This recognition needs to be publicly certified (usually via Information Sheets on the Websites of the German Embassy/Consulate). Once the child is legally recognized by an Intended Father who is a German citizen, the (unborn) child automatically acquires German citizenship.[3] However, there has been a local court decision in 2013 in which a US Paternity Judgment was recognized and both fathers were named in the birth registry even though the biologically connected father had not previously recognized the child as his.[4]
Surrogate Acted Voluntarily
It must be clear that the Surrogate decided voluntarily and under no duress to carry out the child and to give custody and all parental rights to the Intended Parents. No hearing is necessary to prove that, a declaration and the Surrogate’s awareness of the parental establishment procedures suffice.[5]

When all requirements are met, an entry of the child in the birth registry will occur, naming the Intended Parents as parents of the child.”

II. Straight Couple or Intended Mother (s) or Intended Father (s) with No Biological Connection to the Child

As of now, a straight couple, Intended Mothers, or Intended Fathers whose gametes were not used, can only establish parental rights through a step parent adoption in Germany. This process can be started eight (8) weeks after the child was born and takes between six (6) to eight (8) months. It requires the consent of the Surrogate. The consent needs to be notarized. It was judged in a recent local court case, that is not binding for the rest of Germany, that being a party to a Surrogacy Agreement does not make the Intended Parent an accomplice of an illegal procurance of a child and hence an adoption of the child can be granted to the Intended Parent. [6]

III. Single Parent

Unknown.

[1] BGH, Beschluss v. 5.9.2018, XII ZB 224/17 and BGH, Beschluss v. 10.12.2014, XII ZB 463/13

[2] OLG Celle, Beschluss v. 22.05.2017, 17 W 8/16

[3] See supra

[4] AG Neuss, Beschluss v. 13.05.2013, 45 F 74/13

[5] BGH, Beschluss v. 5.9.2018, XII ZB 224/17, BGH, Beschluss v. 10.12.2014, XII ZB 463/13; AG Neuss, Beschluss v. 31.03.2017, 45 F 45/17

[6] OLG Dusseldorf, Beschluss v. 17.03.2017, II-1 UF 10/16

IV. Citizenship

In order for a child to obtain German citizenship, one parent has to be (1) a German citizen and (ii) genetically connected to the child (i.e. German parent’s gametes were used to create the embryo). The Intended Father will have to sign a German paternity acknowledgment. If the German Intended Parent is not genetically connected to the child, the child can still obtain citizenship if the German parent adopts the child. Such adoption must be valid under German law and an adoption decree, which was entered abroad has to be recognized in Germany.