Maternity contestation after surrogacy: No violation of German legal principles

Background

In a remarkable decision dated 22 April 2025 (case no. 378 III 32/25), the Cologne Local Court ruled that the Judicial contestation of maternity abroad - after registration in the German birth register - can be recognisedwithout this violating fundamental principles of German law (ordre public).

The case 

One German intended parent abroad had a Surrogacy was utilised. The surrogate mother agreed to his  Recognition of paternity to. After the birth, she was listed as the mother on the foreign birth certificate. Subsequently, a family court with jurisdiction in the country of birth established in a contestation procedure that she was not the child's mother. The child was not genetically descended from her, as she had carried a fertilised egg from another person, and she had never intended to have parental responsibility. As a result, the foreign birth certificate was corrected to show only the father as the only parent.

The father of the child then also applied in Germany for the Cancellation of the surrogate mother from the birth register. The competent registry office refused to make the correction (Section 47 PStG) and referred the case to the Cologne Local Court.

The decision 

The AG Cologne clarified: The foreign decision is to be recognised - even if § 1591 BGB basically defines the woman giving birth as the mother and there is no provision for contesting maternity in Germany.

The court emphasised the principle of international decision-making consensus and referred to the case law of the Federal Court of Justice (including NJW 2015, 479). The decisive factor was that the foreign proceedings met constitutional standards and that the Child's welfare not impaired will. As there is no genetic connection to the surrogate mother and she did not want to take responsibility, it was justifiable from the point of view of the child's welfareto remove her as a mother from her parental status - and from the register.

Significance for practice 

The decision shows:
👉 Status corrections are possibleeven after birth and registration, if they are based on recognisable foreign judgments.
👉 The parental status can be entered in the German register ex nunc can be cancelled - even if the surrogate mother was originally registered correctly.
👉 The judgement offers intended parents the chance to avoid upsetting and often avoid lengthy stepchild adoptions.

In a legal and social landscape in which surrogacy is emotionally and politically controversial, the decision to More legal certainty and differentiation with: Not every woman who gives birth automatically remains the legal mother - if she does not want this herself, there is no genetic connection and the competent foreign court has subsequently cancelled her maternity.

Conclusion 

Motherhood established abroad without responsibility and without genetic link can - under the conditions of the FamFG - by means of recognition be cancelledso that the child's mother is no longer documented in the birth register. The AG Cologne thus confirms the view that parenthood is not only defined formally, biologically or genetically, but also always includes a Willingness and acceptance of responsibility for the child.