No entitlement to 2 parents

BVerfG, decision of 10 April 2025 - 1 BvR 842/24

Facts of the case

A married man wanted his Stepchild from the divorced 1st marriage alone adopt. His current wife as well as the mother and father of the adult stepchild agreed to the adoption application. The adoption was to be pronounced with the strong effects of an adoption of a minor (Section 1772 BGB). In this respect, the Federal Court of Justice ruled on 11 August 2021 that even in the case of a Adoption of adults it is not possible for only one married spouse to adopt; adoption can only take place jointly (BGH NJW-RR 2021, 1514). However, the adopter and adoptee invoked the possibility of this ExceptionIt was important that the adoptee remained the child of his mother, that his father ceased to be a parent and that he became the new legal child of the adopter. In contrast to a weak adult adoption, in which the parentage relationship also remains with the legal father of the adoptee, with whom there is generally no contact, the aim of the regulations for a strong adult adoption was to selectively adopt a child of the adopter. Father swap with Maintaining maternal status to be carried out. Taking into account the principle of equality (Art. 3 Para. 1 GG) as well as the basic family and parental rights (Art. 6 GG), this follows from the differentiated application of Section 1741 Para. 2 BGB in this respect for married adopters.

Courts of first instance rejected the application

The Local Court rejected the application, as according to the wording and interpretation by the BGH, acceptance could only be made jointly. The Higher Regional Court confirmed this: A violation of the Principle of equality is not present, as the legislator is not prohibited from making any differentiation. In this respect, the legal policy intention of avoiding stepchild relationships must be used as justification for the unequal treatment of unmarried and married adopters. There is also a lack of existential hardship that could possibly justify a teleological reduction of Section 1741 Para. 2 Sentence 2 BGB.

Decision of the BVerfG

The Federal Constitutional Court (BVerfG) did not accept the constitutional complaint lodged against this. The requirements for stepchild adoption were clearly not met. The desired goal could not be achieved even if section 1741 para. 2 sentence 2 BGB were unconstitutional, as this is not provided for in the specialised law.

The BVerfG points out that the only way to achieve the desired goal is to allow adult adoption with the Legal consequences of a stepchild adoption outside of stepchild relationships which, however, would then have to be required by the constitution. The main focus of the decision here is an examination of Article 6 of the Basic Law. Since no legal entitlement to adoption can be derived from Article 6 (2) sentence 1 of the Basic Law (fundamental parental right) for social parenthood, the goal would only be achievable if Article 6 (1) of the Basic Law as a fundamental family right were to provide for such a right. Bid included. As the actual living and Educational community with children is protected by the fundamental family right in Art. 6 para. 1 GG, this would go beyond the aspects of legal parenthood in Art. 6 para. 2 sentence 1 GG. The protection of the family irrespective of a formal parental status does not, however, oblige the state to establish a Social parenting into legal parenthood through adoption. Although there is a state responsibility to enable and ensure a specifically parental relationship with the children, there is No claim to assign a second legal parent to children who already have one legal parent and who is actually prepared to bear parental responsibility (BVerfGE 133, 59, 76 para. 46). It is acceptable that a social parent is denied typical legal powers due to the exclusion of adoption. This is also covered by the legislature's power to legally organise the family. This power leads to not an obligationin the organisation of the family in the legal sense to trace the family communities actually found. As adoption law in itself provides a regulation for obtaining parental status in the first place, this would not result in any family freedoms but rather fundamentally made available and shaped in the first place. Exclusions or restrictions provided for by the legislator are in principle to be attributed to the design dimension of fundamental rights, which, however, includes the denial of development opportunities. As a result, there is no recognisable legislative obligation to grant full legal parental rights in every case of an existing de facto parent-child relationship. 

Classification of the decision

The BVerfG seizes the opportunity, Legislative competences constitutionally and to explore existing freedoms. Fundamental statements on the relationship between the fundamental right of parenthood and the fundamental right of the family (Art. 6 GG) can be contrasted with both the discussions on the introduction of parenthood for the mother's wife and the new parenthood concepts being discussed (such as intentional or pre-conceptual contractual parenthood). Central to the Chamber's view is that the fundamental family right No obligation of the legislator can be derived, transform a social parental position into a legal one. This means that the differentiation between social and biological/legal parenthood, which is actually realised in patchwork families, rainbow families etc., will be further clarified for the planned legal policy reforms to parentage law.

The Wife of the birth mother, who does not become a parent under current law because she is not a man and cannot become a parent if her eggs have been used to fertilise the child, is regarded as a social parenting centre localised. However, this social parenthood fundamentally establishes No legal parental position and also conveys no right of adoption. If a child has one parent, which is always the case in the context of the current regulation, Section 1591 BGB, in relation to the person giving birth, there is no entitlement to be assigned a second legal parent who is prepared to bear actual parental responsibility. It can be concluded from this that the long-discussed allocation of the wife as a parent is possible from a legislative point of view, but is not required under constitutional law. Since the fundamental family right also includes relationships that are equivalent to a parent-child relationship without being covered by the fundamental parental right, the Chamber clearly states that the legislator is not obliged to grant full parental rights in every case of a de facto parent-child relationship. This is likely to have a certain signalling effect for the pending constitutional complaints and orders for reference regarding § 1592 BGB.

What are the consequences of the decision?

As also confirmed in the subsequent chamber decision of 16 April 2025 (BVerfG, decision of 16 April 2025 - 1 BvR 76/24), a specialised court decision cannot be upheld by the constitution if, contrary to the interpretation of Section 1741 para. 2 sentence 2 BGB confirmed by the Federal Court of Justice, it only pronounces the adoption in relation to one spouse without plausible justification. It should therefore be clear that the assessment of the content and applicability of Section 1741 para. 2 sentence 2 BGB carried out by the Federal Court of Justice excludes a personal extension of the effects of adoption, i.e. in particular No selective intended parenthood are possible. Such Elective affinities only the legislator can establish, but is not constitutionally obliged to do so. Freedom rights therefore do not enable selective choices of parenthood without exception, but are in principle limited to the arrangements envisaged and still to be envisaged by the legislator, since adoption is a legal institution that makes parenthood possible in the first place and is not primarily based on a parenthood to be recognised. physical parent-child relationship.

 

Dr Marko Oldenburger

Specialist lawyer for family law and medical law