If, in accordance with the requirements of the AdWirkG, an adoption decision has been issued abroad that is to be recognised in Germany upon application, this decision must contain fundamental principles. German legal principles correspond. An important component of this is the Child welfare. It also plays a role whether the foreign court has dealt with a change of the child's centre of life.

Adoption procedures in Nepal have been criticised

Nepal was criticised many years ago because adoption decisions were allegedly not primarily based on the best interests of the child. As a result, Nepalese adoption decisions were also criticised in the Federal Republic of Germany and it was recommended that they should not be recognised. In 2010, fundamental restrictions were introduced worldwide, which are still upheld in many countries, for example in the United States of America. The main criticism is that the necessary infrastructure is lacking and that adequate protection is not guaranteed in international adoption procedures in Nepal. It is demanded that the Nepalese government should continue to endeavour to implement the Hague Adoption Convention (HAC) and reform its own legal requirements for adoption to protect children and families.

Recognition of an adoption from Nepal possible

In proceedings conducted by Dr Oldenburger for the recognition of a foreign adoption decision before the Munich Local Court (decision of 29 January 2024, ref. 52722 F 11756/22) was based on the fact that a married Nepalese couple adopted an orphan in Nepal. The child's mother works in Germany, the child's father looks after the adopted child in Nepal and works from his home office as part of his employment, also with a company based in Germany. Following its own examination of the merits, the Munich Local Court has ruled in favour of the Nepalese adoption decision. recognised. This will mean that the father can travel to Germany with the daughter. The adoptive parents are now also considered the parents of their adopted daughter in Germany.

The Federal Office of Justice, the Federal Central Office for Intercountry Adoption, has confirmed that the procedure carried out in Nepal was conducted properly. Due to Nepal's lack of participation in the Hague Apostille Convention, the German Embassy in Kathmandu examined the adoption documents submitted and confirmed that they were correct in terms of content and form. In the opinion of the Munich Local Court, the Nepalese court decision, which was reviewed in more detail no indications of procedural errors or non-compliance with the applicable substantive adoption law. The requirements for the adoption of the child were therefore fulfilled.

The local court also found no violations of German legal principles. In the present case, an unknown biological mother gave birth to a child in a hospital in Nepal without being registered by name, address or other information. Police enquiries about the mother were unsuccessful, and newspaper adverts etc. also failed to locate the child's mother. The child was therefore placed in the care of a orphanage and then, after the investigation, released for adoption.

A lawyer of trust appointed by the German Embassy in Kathmandu has reviewed the procedures separately and confirmed the circumstances described. With regard to the planned change of residence to Germany, there was no Special need to adopt abroad was examined by the Nepalese court. However, the child was still so young that growing up in a different geographical and cultural environment did not constitute a fundamental obstacle to recognition. Due to the difference in location, the Nepalese court had also taken into account the findings of the reviews of the Children's aid organisation in Nepal obtained information about the accommodation and care in Germany. The children's aid organisation checked the local housing and care situation virtually and obtained extensive information about the adoptive parents, who were also interviewed in person in Nepal. The essential Life circumstances in Germany were therefore known to the Nepalese court to a sufficient extent and could therefore be used as a basis for the favourable adoption decision.

In addition, there has been a longstanding Parent-child relationshipas the adoptive father looks after and cares for the child in his own, Nepalese, household. In this respect, a parent-child relationship has already been established, there are already ties to the adoptive mother and it is to be expected that a further mother-child relationship will develop positively. For this reason, the Munich Local Court found that the Child welfare assessment The Nepalese court's judgement was accepted and a violation of German ordre public, i.e. public order, was rejected.

Consequences of the decision

For a foreign domestic adoption from Nepal, taking into account the special requirements of the adoption procedures in Nepal, the Requirements for eligibility for recognition in Germany and therefore applicable for future proceedings.

Dr Oldenburger advises you on all questions relating to foreign adoptions and their recognition in Germany. Further information can be found HERE.

Ancestry decisions from the Ukraine

Despite the war, German opposite-sex couples continue to use Ukraine to fulfil their desire to have children with the help of a surrogate mother. Article 123 of the Family Code (FGB) stipulates that when using reproductive medical measures, i.e. assisted reproductive technologies, the couple (who wish to have children) legally become the parents of a child born from a surrogate mother. The prerequisite for this parenthood is that the husband has made his sperm available for artificial insemination with an egg cell that does not originate from the surrogate mother. According to Art. 123 FGB, the wife becomes the legal parent (mother) regardless of any genetic contribution to procreation.

The birth of a child is recognised in accordance with Art. 2 of the Law on the state registration of civil registry records registered. The birth of a child is an event that is inextricably linked to the child as a natural person. The registry office is responsible for registration (Art. 3 of the Law on the state registration of civil registry records). The registration itself is implemented by means of a registry office entry. Such a registry office entry is a document containing personal information about the person concerned. Declarations from the parents (or one of the parents) at the place of birth are required for registration. The declarations can also be submitted electronically.

In addition to these declarations, documents, including a medical certificate of birth, must be submitted. If there is no such certificate from the maternity clinic confirming the fact of birth, a special civil status certificate must be applied for and issued, which forms the basis for state registration in place of the missing certificate of the fact of birth (Art. 13 Law on the state registration of civil registry records).

The documents required for registration are specified in a special set of rules. These are the Rules of state registration of civil registry recordswhich were approved by Order of the Ministry of Justice of Ukraine No. 3307/5 of 24 December 2010. According to p. 1, third section 1 of these rules, registration requires, among other things, the presentation of a medical birth certificate. If this is not presented, a court must first establish the fact of birth. Only then can a corresponding certificate be issued by the registry office and the registration implemented.

If the help of a surrogate mother is utilised, the application for registration is submitted by the intended parents. In addition to the medical birth certificate, a declaration from the surrogate mother stating that she agrees to the registration of the spouses as the child's parents is required for registration. This declaration must be submitted in notarised form. In addition, proof of genetic parentage from the child's father must be submitted.

In this respect, the birth certificate required for registration is always based on the declarations and documents presented. If it is issued, the subsequent registration in the state register takes place. The legal basis for this is Section 11 Chapter 1 Section III of the Rules of state registration of civil registry records in the Ukraine. It is also registered that the parents had the child carried by a surrogate mother and the registration is based on the rules on assisted reproductive technologies.

If the corresponding parental assignments are registered in this way, the prevailing opinion is that there is no further possibility of having the fact of a family relationship established separately in court. However, there are some norms in the Code of Civil Procedure of Ukraine that are in favour of this. Special procedure for example Art. 293, 294 and 315 ZPO (UKR). However, both parents must regularly agree to special proceedings.

The question of whether a Ukrainian court can still recognise parenthood in special proceedings despite the existence of proper registration on the basis of a birth certificate is controversial. With regard to Georgia, such legitimisation was rejected by Georgian courts in the absence of a special need for legal protection; the attempt to nevertheless achieve recognition of parenthood in Germany on the basis of the grounds for the decision failed before the Higher Regional Court of Celle (OLG Celle NZFam 2023, 784).

In Ukraine, there have been first-instance decisions by city and district courts confirming parenthood for many years, partly on the basis of legal opinions submitted in relation to other national rights. At the request of the intended parents, including German parents, the documents submitted there are examined in a proper procedure and a decision on the merits is made. In addition to examining notarised declarations by the surrogate mother, genetic parentage reports, birth certificates, birth certificates, etc., the courts of first instance are guided by Article 293 of the German Code of Civil Procedure (UKR), among other things, and carry out the determination of the requested parenthood as a so-called Special procedureas this is a legally significant matter. The courts refer, among other things, to Art. 496 of the Code of Civil Procedure (UKR): According to this article, foreigners have the right to apply to Ukrainian courts in order to protect their rights and interests. They are on an equal footing with natural persons of Ukraine.

When reproductive technologies are used, the intended parents are considered parents in accordance with Art. 122 FGB; in accordance with Art. 133 FGB, the husband is the father and the wife is the mother of the child born to the surrogate mother. The special interest in a declaratory judgement is justified by the courts of first instance with reference to the different consequences under German law, according to which it is not the intended mother but the surrogate mother who becomes the legal mother of the child. This is not in the best interests of the child. According to Art. 2, 3 of the UN Convention on the Rights of the Child, which has also been ratified in Ukraine (Resolution of the Verkhovna Rada No. 789-XII of 27.02.1991), there must be no discrimination against children, regardless of gender, race, skin colour, etc. The child's welfare must be protected in all measures. In all measures, the best interests of the child are paramount. In the Mennesson and Labassee case (ECtHR Nos. 65192/11 and 65941/11), the European Court of Human Rights (ECtHR) granted the member states the competence to prohibit surrogacy, which is not objectionable under European law. On the other hand, member states that install such a ban are obliged to recognise family relationships that arise on the basis of surrogacy carried out legally abroad. Otherwise, the rights to respect for private and family life under Art. 8 ECHR would be violated. In this sense, there is also a particular need for legal protection for German intended parents to have their status as parents in Ukraine established by a court. This applies all the more as the Federal Court of Justice has not accepted the recognition of a registration based on a birth certificate (BGH NJW 2019, 1608).

In the ECtHR proceedings in the Mennesson and Labassee case (loc. cit.), it was emphasised that it was up to national laws to regulate the way in which parental status obtained abroad is legalised. However, the possibility of obtaining parenthood by means of adoption, if this is actually possible, is sufficient. A fundamental obligation to directly recognise parenthood after surrogacy does not exist from a European legal perspective.

The choice of means to implement parenthood obtained abroad into national law therefore falls within the Member States' scope of judgement. However, the ECtHR points out that the parent-child relationship must be established at the latest at a point in time at which this relationship materialises. The status relationship should then be able to be effectively established, which may or may not necessarily be the case with adoptions. The ECtHR emphasises the importance of a swift decision and allocation. With regard to German law, it is not possible to speak of rapid implementation in the case of stepchild adoption, which must regularly be applied for if there is no foreign recognisable decision (including registration). The proceedings regularly take two years or longer (e.g. AG Neumarkt - 003 F 499/22; AG Reinbek - 20 F 14/21; AG Munich - 52721 F 1965/22).

The Court of Appeal in Kiev recently had to rule on a case in which the parenthood of a married German couple after surrogacy was initially established by birth certificate and registration in accordance with Ukrainian law (Kiev Court of Appeal, decision of 17 January 2024, case no. 22-z/824/4711/2024, single case number 761/21494/22). Paternity was established with the consent of the surrogate mother, Art. 19 para. 1 EGBGB in conjunction with §§ Sections 1592 No. 2, 1594 BGB, recognised. After travelling back to Germany, the intended parents separated and the child was taken by the father to his new household. The father entered into a new relationship. He rejected a stepchild adoption, which was initially planned. As the legal and genetic father, the intended mother now only had the option of applying to the Ukrainian city and district court to establish parenthood following the surrogacy carried out in Ukraine. However, the father of the child was not properly involved in these proceedings. Nevertheless, the court of first instance ruled in favour of the application. After the decision was served, the child's father lodged an appeal. The court of appeal examined the facts of the case together with the relevant legal situation and came to the conclusion that parental status could not be established in this case. It overturned the first instance decision and upheld the child's father's appeal. The intended mother, whether genetic mother or not, was irrelevant and is therefore not in a position to become the mother of her child.

The Court of Appeal based its decision, among other things, on the inadequate procedural involvement of the child's father in the first instance. He had not been sent any applications or notifications about the opening and conduct of the proceedings. The establishment of his parenthood was, according to his grounds of appeal, generally not desired by him. He had separated from the intended mother. He was not interested in legalising joint parenthood in Germany, which might exist under Ukrainian law. He was the legal father, the intended mother was not the legal mother. A determination of joint parenthood was therefore out of the question for him due to the special need for legal protection of the German intended parents, especially as he had not filed or supported an application for a declaratory judgement himself. The Court of Appeal also stated that the special determination of parenthood in special proceedings is always not possible if proper registration has already taken place on the basis of the Ukrainian legal system. There is then no longer any room for a special need for legal protection.

The extent to which this decision will have a signalling effect on other first-instance decisions remains to be seen. In initial decisions in 2024, however, no changes in the practice of first-instance declaratory judgements were identified by us following the appeal decision. It is therefore likely to be an individual case decision, which led to the first instance declaratory judgement being overturned, in particular due to the separation of the intended parents.

Following the appeal decision, however, it is all the more important to argue intelligently in the case of a planned parentage decision to be implemented in German law by means of recognition and, above all, to emphasise the negative consequences for the child. Dr Oldenburger prepares special legal opinions for this purpose, which can be used in Ukrainian declaratory proceedings. For years, he has also successfully conducted recognition proceedings in Germany on the basis of foreign status decisions. You can find more information on recognition proceedings HERE (link: Foreign decision).

If it is not possible to obtain a foreign parental decision, or if recognition fails, the only remaining option is stepchild adoption. Dr Oldenburger has also been advising and representing couples in this process for many years. You can find background information, procedures and tips on stepchild adoption here HERE.