parentage and citizenship

German law prohibits surrogacy but recognizes a US Parentage Order/Judgment to establish paternity of two fathers so long as one father has a biological connection to the child.[1] It seems however, that it cannot be used to establish maternity for the Intended Mother, notwithstanding her biological connection to the child.  There is a case pending at the German Supreme Court involving a straight couple.[2]

According to German law, the mother of the child is who gave birth to the child. A father can establish paternity by (i) being the husband of the woman who gives birth to the child, (ii) legally recognition of the child or (iii) through a paternity judgment. A paternity judgment requires a biological connection between the father and the child.

I. Gay couple: Intended Fathers, one with Biological Connection to the Child

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

  1. Valid Surrogacy Agreement

    The parties must have signed a surrogacy agreement that meets all the requirements of the Country in which it was executed.

  2. Biological connection

    One of the Intended Fathers’ sperm must have been used in order to create the embryo

  3. 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]

  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 suffices.[5] 

  5. Surrogate must be single

    There has been no decision of the German Supreme Court on the recognition of a US Judgment in the constellation when the Surrogate is married. According to German Law, the legal father of the child, notwithstanding biological connections, is then the husband of the Surrogate. Since the Surrogate’s husband is deemed the legal father of the child, the child does not automatically have the German citizenship. In this case, the citizenship is established according to the child’s domicile. If the Intended Parents take the child to Germany right after its birth, it is domiciled in Germany and hence acquired the German citizenship.[6]

    However, there has been a recent decision from a Local Superior Court of Administrations (not binding for the rest of Germany) in which it was judged that a US Court Order/Judgment that establishes paternity of the Intended Father with a biological connection to the child has to be recognized, as long as the Surrogate’s husband was also a party to the Surrogacy Agreement, agreed to relinquish his parental rights and to give custody and all parental rights to the Intended Parents.[7] Also, there has been a ruling by a Higher Regional Court that a Ukrainian Parental Judgment needs to be recognized in order to establish parentage of a straight couple who entered into a Surrogacy Agreement with a married Surrogate. The Surrogate’s husband issued a statement after the birth of the child that he relinquished all parental and custodial rights to the child.[8]

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

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 sperm was 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. [9] 

A recent local Higher Regional Court ruled that a US pre-birth Judgment cannot be recognized to establish paternity.[10] The Intended Parents are a straight couple who entered into a Surrogacy Agreement with a married Surrogate. The case is now before the German Supreme Court.

III. Single Parent

Unknown.

[1] BGH, Beschluss v. 10.12.2014, XII ZB 463/13

[2] OLG Braunschweig, Beschluss v. 12.04.2017, 1 UF 83/13

[3] See supra

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

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

[6] We need to confirm this with a German lawyer

[7] OVG NRW, Urteil v. 14.07.2016, 19 A 2/14

[8] OLG Frankfurt am Main, Beschluss v. 14.07.2014, 20 W 374/13

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

[10] OLG Braunschweig, Beschluss v. 12.04.2017, 1 UF 83/13

 


GC Matching Criteria / Complex Cases

**A match involving an unmarried GC is required.


Birth Certificates

The US birth certificate should reflect what the parent(s) would like the German birth certificate to state.

For clarification purposes, a US birth certificate listing a same-sex couple is acceptable.


Returning to Germany / Clearing Immigration

Parent(s) should have the following documents with them when clearing immigration:

  • US Birth Certificate
  • US Parentage Judgment/Order
  • Surrogacy Agreement
  • Letter from German Counsel

preferred Counsel