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Can a diverse person become a parent?

Under current law, the woman who gave birth to the child is the mother. On one of Female deviating changed gender identity is not relevant. Even a male, various or Without specification Person is always Mother. The allocation of the second parent position, on the other hand, is more complicated. Paternityso Male. Women can therefore not become fathers. The BVerfG will soon clarify whether this is constitutional.

After the introduction of the Self-Determination Act (SBGG) on 01.11.2024, there is the possibility of being male registered gender identity to become a father. To do so, there must be a legally valid marriage with the mother or paternity must be recognised with her consent. If, on the other hand, it is clarified in court, only a man can be established as the father. This means that the change in gender identity is meaningless in terms of parentage law. In addition, it should only apply to conception by means of Seeds arrive; a (possibly male registered) person with whose Oocyte conceived a child and carried to term by another woman cannot be established as the father by the family court on the basis of a DNA report. She will also not become the mother.

The BVerfG has already established that there is another gender between female and male: Miscellaneous. This is neither sexless still gender-neutral. Nevertheless, the BGB and SBGG insist on the binary gender principle of man and woman. The Third gender (diverse) cannot become a parent according to the wording of § 1592 BGB. This consequence could be realised either in the context of a

  • constitutional interpretation to adapt the content of § 1592 BGB or
  • Submission to the BVerfG

lead.

The Federal Court of Justice (BGH, decision of 11 June 2025 - XII ZB 354/22) has now had to deal with the question of whether a person diverse gender can be registered as the father. The proceedings were based on a correction procedure in accordance with § 48 PStG, as the registry office refused the requested registration.

The case

A woman brought in marriage with a person more diverse gender identity gave birth to a child. The couple applied for the registration of the diverse spouse as the second parent in the birth register. The registry office rejected this and only entered the child's mother in the register. The couple contested this with an application for rectification in accordance with § 48 (Civil Status Act) PStG. At the same time, however, stepchild adoption proceedings were also conducted, which were ultimately successful, even before the local court ruled on the application for correction. The couple then withdrew their application for rectification. back and instead applied for the Determinationthat the registry office had been obliged from the outset to diverse Spouse to be registered as parent.

The decision of the BGH

Both the Local Court and the Higher Regional Court dismissed the application for a declaratory judgement as inadmissible back. The BGH confirmed this view:

  • An application for a declaratory judgement is not provided for in the Personal Status Act and cannot be derived by analogy with Section 62 FamFG.
  • The subject of a declaratory judgement procedure can only be a judicial decision.
  • The legislator only wanted to enable the correction of erroneous entries, but not to allow subsequent findings on their legality.

The BGH clarified: If the desired registration is achieved through adoption, there is no legal institution in civil status law to subsequently review the legality of the official action (here: registry office). The continuation of the rectification procedure after declaration of completion would have been possible - and probably more effective.

Practical note

The decision has practical implications:

  • If an entry is made as a second parent in relation to a person with more diverse gender identity, it is advisable to conduct registration and rectification proceedings under the PStG in parallel with stepchild adoption proceedings in order to allow for judicial clarification. However, under no circumstances should the withdrawal be declared if the parallel adoption procedure has been successfully completed.

Conclusion

The Federal Court of Justice would obviously have liked to make a substantive decision - and possibly interpret the statutory provision in Section 1592 No. 1 BGB in conjunction with Section 11 para. 1 sentence 2 SBGG in a constitutional manner to the effect that a person with more diverse gender identity can become the second parental authority, or the provision would otherwise be subject to review by the constitutional court. The fact that this did not happen was due to the procedural declarations of the parties involved, as the withdrawal of their original application for rectification ruled this out.

It is to be hoped that this issue will be reviewed by a higher or supreme court in the near future. In this respect, you are very welcome to contact me, I would be happy to accompany such proceedings.

In legal practice, however, it is once again clear how crucial it is to choose the right procedural instrument at the right time (here: declaration of termination instead of withdrawal and application for a declaratory judgement).

Dr Marko Oldenburger

Specialist lawyer for family and medical law

Dr Oldenburger advises and represents individuals, different and same-sex couples on the path to fertility fulfilment, including surrogacy and international adoptions. Send him an e-mail at (oldenburger@schneiderstein.de) or use our Contact form.
By the way: We offer country-specific package prices for surrogacy and international adoption procedures from A-Z (fixed prices) or modular fees depending on your service requirements. This means that your expenses can be calculated from the outset. Further information on the desire to have children here.