In its decision of 22 April 2025 (case no.: 378 III 32/25), the Local Court of Cologne sent a further signal for the recognition of foreign parentage decisions in the context of surrogacy. The proceedings concerned the correction of a German birth entry - specifically the removal of the surrogate mother as the legal mother from the birth register.
Background: Surrogacy and legal parenthood
The case centred on a man living in Germany who had a child (conceived with his sperm and an anonymous egg donation) carried by a surrogate mother abroad. The foreign birth certificate identified the surrogate mother and the man as the parents of the child. However, the competent court in the country of birth then determined that the surrogate mother was not the biological - and therefore not the legal - mother of the child. As a result, the birth entry was corrected, the surrogate mother was no longer the mother of the child born to her and the child had only one parent: its father. The reason for this was that the surrogate mother was not genetically related to the child and did not want to bear any parental responsibility. The aim was now for the father to be entered in the German birth register as the sole parent.
The registry office refused to do so on the grounds that German law did not recognise a maternity contestation. The foreign decision could therefore not be recognised and implemented. The case was submitted to the registry office supervisory authority for review, which ultimately asked the Cologne District Court for a decision.
The decision: Priority of the best interests of the child and international recognition of rights
The court followed the applicant's reasoning and recognised the foreign court decision in full. It clarified that:
- a foreign determination of non-maternity is to be legally recognised,
- the continuation of the birth register without naming the surrogate mother is lawful,
- there is no violation of German international public policy and
- the acknowledgement of paternity is not invalid despite the fact that a (non-)mother has consented to it.
The decision thus clarifies that the best interests of the child - specifically the child's right to a stable relationship with its real parents - take precedence over the ban on contesting maternity in Germany. Even if surrogacy is not legally regulated in Germany or is prohibited with regard to medical involvement and mediation activities, this prevents the recognition of deviating foreign decisions notprovided that these were issued in accordance with the principles of the rule of law. The BMJV's plan to explicitly include in family law that maternity is incontestable will not change this (according to the BMJV's draft bill of 4 July 2025 (https://www.bmjv.de/SharedDocs/Downloads/DE/Gesetzgebung/RefE/RefE_Vaterschaftsanfechtung.pdf?__blob=publicationFile&v=2)
Significance for practice
The decision of the Cologne District Court confirms and supplements previous BGH case law (see BGH, decision of 10 December 2014 - XII ZB 463/13), according to which the circumvention of prohibitions in German law does not in itself constitute a legally significant violation of fundamental German legal principles. It shows that German courts respect foreign family law decisions in the field of reproductive medicine, especially in surrogacy cases - as long as they are in the best interests of the child and also observe fundamental German values. In addition to procedural aspects such as the right to be heard and a statutory judge, this also includes the interests of the surrogate mother, in particular her dignity and voluntariness.
Conclusion
In addition to the recognition of foreign court decisions on parentage, which establishes the intended parents jointly as parents, it is now also possible to retroactively achieve parenthood for only one intended parent. It is a novelty in German law that the mother's entry in the birth register is subsequently omitted. For intended parents who go down the route of surrogacy abroad, this decision means a significant increase in options: If there is a genetic connection to the intended parent, unlike to the surrogate mother, 1-person parenthood can be obtained not only by means of prenatal or postnatal court decisions on parentage (as in the USA, for example), but also by means of a postnatal decision contesting the maternity. This makes countries such as Mexico and the USA more attractive to German intended parents and individuals.
I will be happy to provide you with legal advice on surrogacy, foreign births, paternity recognition and the recognition of foreign decisions.
Dr Marko Oldenburger
Specialist lawyer for family law & medical law
Schneider Stein & Partner - Your law firm for international family law
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