Mother-mother-child: parenthood of two women possible in Germany!

Mother-mother-child: parenthood of two women possible in Germany!

AG Cologne recognises co-maternity under Spanish law

In a ruling dated 4 March 2025 (case no. 378 III 10/25), the Cologne Local Court decided that the wife of a child born in Germany must also be entered in the birth register. the mother can be registered as the motherif their legal parental status results from their applicable home law (here: Spain). The court applies the Parentage law requirements of private international law.

The case: Two women, one child

Two women are married to each other. One of them (a Spanish woman) lets herself be Oocyte retrieval and with the help of an anonymous Sperm donation abroad; the fertilised egg is implanted in her wife (German and Canadian), she becomes pregnant and gives birth to a healthy child in Germany. The wife who gives birth is the mother (§ 1591 BGB). According to § 1592 BGB, however, only a married couple canMAN become the father, which is why her wife does not become a parent. In the Spanish law of descent is different, however, where the Wife also a parent. The couple therefore referred the registry office to Spanish law and requested that the wife be entered in the birth register as the mother. The registry office in Cologne doubted that the wife could be entered in the birth register as an additional parent (mother) and referred the matter to the local court for examination and decision.

Decision: Parenthood of the wife is governed by Spanish law

The Local Court of Cologne clarifies: The parentage of the child is not always based solely on the law of the habitual residence or the statute of the marriage, but can also be based on the law of the place of residence in accordance with Art. 19 para. 1 sentence 2 EGBGB. Birthright of the wife be assessed. The Spanish law applicable in this respect recognises, under certain conditions, the Co-maternity by operation of law: The spouses must not live separately, and the mother's wife must also submit a special declaration of consent, according to which the parentage relationship to her can be established (which was done in the present case).

If German law had been applied, it would not have been possible to register the wife, as there is no statutory provision on the Co-maternity (outside of an adoption) has been missing so far. The Federal Constitutional Court is expected to hear pending constitutional complaints this year. Until there is a change in the law, according to Section 1591 of the German Civil Code (BGB), the mother is exclusively the woman giving birth; an equivalent legal parental status for her wife is only possible via an adoption procedure (or a prenatal adoption). Change of gender identityin which case there is no registration as the mother).

Despite the deviations from German law, the application of foreign law does not violate the conflict of laws principle. ordre public. The Federal Court of Justice had already ruled in 2016 that foreign regulations that establish the legal parental status of the wife of the woman giving birth do not violate fundamental values of German law (BGH, decision of 20 April 2016 - XII ZB 15/15).

Significance of the decision

In this decision, the Cologne Local Court expressly affirms the registration both women as mothers of the child in the birth register. The deviation from German law, according to which only men can become second parents, is explicitly not seen as a violation of fundamental German legal principles. It also shows that the alternatively applicable criteria of Art. 19 Para. 1 EGBGB for the allocation of parenthood are essentially based on the Child are related. If the parentage can then be established quickly, reliably and sustainably, i.e. the child receives its correct parent, other attribution principles must take a back seat. This expands the possibilities for same-sex couplesto become joint parents (without adoption) even under current law.

Conclusion

This decision shows that the German legal system - applying the EGBGB - is ready, foreign co-maternity concepts if these are based on a legal basis and do not violate fundamental German legal principles.

Dr Marko Oldenburger
Specialist lawyer for family law & medical law