The Berlin Court of Appeal (decision of 17 June 2025 - 1 W 386-387/22) had to deal with the question of how a female-to-male transsexual who gives birth to a child should be entered in the birth register.
The person concerned wanted to be Father resp. first parent position be registered. However, the registry office entered him as "mother" and added the gender "female" to the register. The man's applications against this were unsuccessful.
The KG clarified: According to current law (Section 1591 BGB), the person who gave birth to the child is always the mother - regardless of a previously changed gender identity. Paternity, which the applicant wishes to register, is only possible as a second parent and derived from the motherhood of the person giving birth - either through marriage or recognition/consent or judicial determination on the basis of sperm cells used. Physical descent through genetic connection by means of an egg cell is not possible. The court did not see any violations of fundamental rights, but allowed an appeal on points of law to the BGH due to its fundamental importance.
Classification:
The decision illustrates the memorable effects of years of legal policy passivity on matters of life. It shows the consequences that arise when specialised law adheres to historical classifications - every parenthood is limited to the binary categories of woman and man, which can be determined according to chromosome pairs. Despite reforms (TSG → SBGG), the first parent is always the mother due to the birth and the person giving birth is always entered in the birth register as female and woman. However, this legally overrides a different self-determined gender of the person giving birth in a questionable manner. What speaks against recognising a female-to-male transsexual as a Parent position in the birth register and not against his gender identity as a woman and female? This did not change his parenthood.
From a constitutional point of view, the current legal situation has not been unproblematic for some time. However, since the introduction of the SBGG on 1 November 2024 at the latest, the exclusive designation of the person giving birth as a mother has been in conflict with a different gender identity. The fact that they must be legally recognised without discrimination has already been emphasised by the BVerfG (Federal Constitutional Court) in decisions on the former TSG (Transsexuals Act). However, specialised law continues to force people to register with a different gender and name, contrary to their own gender identity. Every person from whom a child is of biological descent is a parent within the meaning of Article 6 (2) of the Basic Law. This includes - in addition to equal genetic descent through egg and sperm cells - birth. Considering that the PStV (Personal Status Ordinance) allows the form-based designations of mother and father to be changed immediately to parent, it is incomprehensible that this should not be done immediately or, ultimately optimally, that any compulsory gender-specific classification should be avoided. The question of whether a gender-specific assignment as a parent in the birth register is necessary at all is rightly being increasingly criticised in the literature.
Conclusion:
The KG Berlin confirms the previous legal situation - but at the same time makes it clear that there is a need for legislative clarification and amendment. The discussion about a modern parentage law that no longer necessarily links parenthood to gender assignments therefore remains highly topical.
Dr Marko Oldenburger
Specialist lawyer for family law and specialist lawyer for medical law
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