The German Federal Court of Justice ruled in a judgment published Tuesday that the wife of a mother is not automatically deemed the legal co-parent of a newborn child, finding that the paternity law of the German Civil Code only applies to male-female couples.
The matter at hand involves a same-sex couple who had been in a registered civil partnership since May 2014. After the country legalized same-sex marriages in 2017, the couple officially married and within a month an artificially inseminated child was born. When the child was born, only the biological mother was listed as a parent and the spouse took legal action to try and get the registration amended.
In coming to its conclusion the court interpreted German Civil Code § 1592, which automatically confers the legal co-parent status to a “father” in accordance with the following prioritization scheme:
[First] who is married to the mother of the child at the time of birth, Second, who has recognized paternity or, Third, whose paternity is judicially established by virtue of section 1600d or section 182 (1) of the Law on Procedures in Family and Voluntary Jurisdiction.
The court looked at the plain meaning of the text and, in a press statement released on Tuesday, clarified that “according to [§ 1592’s] clear wording, the norm regulates only paternity and assigns it to a specific man on the basis of a rebuttable presumption.”
The court further rejected the claimant’s argument that the legalization of same-sex marriage implicitly amended the country’s descent laws, noting that the legislature has yet to make any changes regarding such. This is further “evidenced by the fact that the Federal Ministry of Justice and Consumer Protection has set up a working group, which should prepare a comprehensive reform of the right of descent and has also dealt intensively with the issue of same-sex parenting.”
Finally, the court concluded that the Code does not violate the country’s Basic Law or the European Convention on Human Rights.
In particular, it does not constitute a difference in treatment within the meaning of Article 3 (1) of the Basic Law that, unlike a husband, the spouse of the child’s mother is not the legal parent of the child by virtue of the marriage at birth. Rather, the situation is different insofar as the wife can be a purely biological non-biological parent of the child. This difference justifies the deviant treatment of same-sex and mixed-sex couples and their children under the right of descent.