BVerfG strengthens the rights of biological fathers

On 9 April 2020, the First Senate of the Federal Constitutional Court ruled that Section 1600 para. 2 Alt. 1, para. 3 sentence 1 BGB is incompatible with Art. 6 para. 2 sentence 1 GG. The legislator must eliminate the unconstitutional situation by 30 June 2025.

The facts of the caseA mother of 5 children by different men became pregnant by her partner, with whom she was living at the time. After the birth, they separated. The child remained with the mother. The biological father tried to establish his paternity by recognising it with the mother's consent. However, the mother did not give her consent. He then filed an application for a declaratory judgement. One month after filing the application, the mother's new partner, who now also lived with her, recognised paternity with her consent, although he is not the biological father. After obtaining a genetic parentage report, the legal paternity of the partner was cancelled and the paternity of the biological father was established. With reference to a chamber decision of the BVerfG, the family court based its decision on the fact that there was no social-familial relationship with the cohabiting partner at the time of the paternity acknowledgement and therefore there was no bar to contestation by the biological father at this time, which was decisive (AG Halle Beck RS 2021, 61917). On appeal, the OLG Naumburg overturned the family court decision and dismissed the application for annulment. With reference to the case law of the Federal Court of Justice (BGH NJW 2021, 1875), the time of recognition could not be used as a basis; the time at the end of the last oral hearing was decisive without exception (OLG Naumburg NZFam 2023, 664). The fact that the paternity of the biological father cannot be established in principle if a social-familial relationship exists must be accepted.

The decisionAccording to the unobjectionable opinion of the Federal Court of Justice, a retroactive assessment from a legal point of view is excluded and thus the efforts of the biological father to also bear parental responsibility are meaningless in the assessment within the meaning of § 1600 para. 2 BGB. The effective possibility of becoming a father is thus not only insignificantly impaired. Although it is conceivable that a social-familial relationship is worthy of protection and that the legislator is installing a priority in this respect, the current legal situation does not provide a constitutionally required balance including the rights of the biological father. In particular, previous social-familial relationships and efforts to assume parental responsibility are not taken into account. And even if a social-familial relationship with the legal father that would prevent a challenge were to cease at a later date, there would be no possibility of obtaining legal parental status.

The BVerfG therefore demands sufficient opportunities to influence the requirements of § 1600 Para. 2 Alt. 1 BGB and thus to harmonise the basic parental right with parental responsibility. This could not depend on coincidences and timing, nor could it be subject to the will of the mother alone. Any race for the legal position of father does not fulfil the legislator's requirement for a constitutional design.

In a change to the previous case law, the basic parental right under Art. 6 Para. 2 Sentence 1 GG is now also available to biological fathers. According to the new case law of the Senate, the prerequisite for this is that paternity results from a genetic connection with the child due to a natural act of procreation with the mother (this should therefore not apply to private sperm donors). In this case, the fundamental right of paternity is in addition to that of the mother and the already installed legal father. Even in constellations in which more than two people have parental rights and are holders of fundamental rights, the legislator must ensure that they can also fulfil their parental responsibilities. The legislator is also free to establish extended parenthood in relation to the biological father in addition to the legal father. 

BackgroundIn a decision from 2003, the BVerfG had still stated that Art. 6 Para. 2 GG did not grant the natural father the right to be granted the position of father before the legal father in every case and thus to oust him from his position as father (BVerfG NJW 2003, 2151, 2154). However, the BVerfG accepted at the time that the legislator had even given priority to the legal, not biological, father in the case of an existing social-familial relationship only pointing out that the legal reassignment that would otherwise occur would jeopardise the cohesion of the previous family unit in which the child lives by dissolving the legal relationships of its members. Conflicts could arise from the divergence of legal assignment and social-family relationship, which on the one hand would jeopardise the child's upbringing in its best interests and on the other hand would make it difficult for the child to determine to whom it belongs (BVerfG NJW 2003, 2151, 2155). At the time, the Senate had based its decision on the fact that, however, in the absence of a social-familial relationship with the legal father, there was no interest worthy of protection against a reassignment and emphasised that, although the challenge meant a change in the child's assignment to the father, this did not significantly affect the child's welfare if there was no relationship between the child and the legal father that could be impaired by living together with him. The resulting congruence between biological and legal paternity was emphasised as positive. However, the BVerfG had accepted an earlier assessment date in a chamber decision in order to take into account the necessary effectiveness of obtaining legal parenthood for the biological father (BVerfG NJW 2018, 3773). The chamber was of the opinion that a challenge should not fail due to a retrospective assessment of a social-familial relationship with the legal father if the biological father had filed the application at a time when the parental status was open to him and no other man had yet assumed a social paternal status for the child.

Other aspectsIn addition to strengthening the rights of biological fathers - and thus a renewed correction by the legislature in the right to contest § 1600 BGB - the Senate's comments on possible multiple parenthood are particularly noteworthy: Art. 6 para. 2 sentence 1 GG does not determine which persons are eligible as holders of fundamental parental rights and thus holders of parental responsibility. The specific organisation is the responsibility of the legislator, who can extract persons from the group of parents and transfer parental responsibility to them under fundamental rights. However, the legislator is limited in this respect, as an essential reorganisation of parental rights is excluded. The link between the basic parental right and parental responsibility is structurally formative in terms of constitutional law (and therefore significant). However, parental responsibility as an elementary component of fundamental parental rights does not merely include the right to contact or custody. It includes the duty to care for and bring up the child and is not limited from the outset to just two parents, as follows from Art. 6 para. 2 sentence 1 GG. It is also irrelevant whether the status assignment is based on a biological, genetic-biological parentage or on a legal assignment. However, the legislator does not have to all Grant mothers and fathers (at the level of biological and legal parentage) parental responsibility.

As a solution the BVerfG outlines, among other things, the recognition of the biological father as an additional parent in addition to the legal father. If this is not chosen by the legislator within the scope of its decision-making prerogative, but instead wishes to retain a two-parent relationship, the biological father must, however, have an effective procedure available to him to become the legal parent. This is currently provided by the provision of § 1600 Para. 2 Alt. 1, para. 3 sentence 1 BGB.


Dr Marko Oldenburger

Specialist lawyer for family law

Specialist lawyer for medical law

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