{"id":5455,"date":"2025-09-25T15:07:57","date_gmt":"2025-09-25T13:07:57","guid":{"rendered":"https:\/\/www.anwaelte-schneider-stein.de\/?p=5455"},"modified":"2025-09-25T15:07:57","modified_gmt":"2025-09-25T13:07:57","slug":"can-a-diverse-person-become-a-parent","status":"publish","type":"post","link":"https:\/\/www.anwaelte-schneider-stein.de\/en\/ssp-news\/kann-eine-diverse-person-elternstelle-werden\/","title":{"rendered":"Can a diverse person become a parent?"},"content":{"rendered":"<section class=\"l-section wpb_row height_small\"><div class=\"l-section-h i-cf\"><div class=\"g-cols vc_row via_grid cols_1 laptops-cols_inherit tablets-cols_inherit mobiles-cols_1 valign_top type_default stacking_default\"><div class=\"wpb_column vc_column_container\"><div class=\"vc_column-inner\"><div class=\"wpb_text_column\"><div class=\"wpb_wrapper\"><p>Under current law, the woman who gave birth to the child is the mother. On one of <em>Female<\/em> deviating changed gender identity is not relevant. Even a <em>male<\/em>, <em>various<\/em> or <em>Without specification<\/em> Person is always <strong>Mother<\/strong>. The allocation of the second parent position, on the other hand, is more complicated. <strong>Paternity<\/strong>so <em>Male<\/em>. Women can therefore not become fathers. The BVerfG will soon clarify whether this is constitutional.<\/p>\n<p>After the introduction of the <strong>Self-Determination Act<\/strong> (SBGG) on 01.11.2024, there is the possibility of being <strong>male registered gender identity<\/strong> to become a father. To do so, there must be a legally valid marriage with the mother or paternity must be recognised with her consent. If, on the other hand, it is clarified in court, only a man can be established as the father. This means that the change in gender identity is meaningless in terms of parentage law. In addition, it should only apply to conception by means of <strong>Seeds<\/strong> arrive; a (possibly male registered) person with whose <strong>Oocyte<\/strong> conceived a child and carried to term by another woman cannot be established as the father by the family court on the basis of a DNA report. She will also not become the mother.<\/p>\n<p>The BVerfG has already established that there is another gender between female and male: <strong>Miscellaneous<\/strong>. This is <strong>neither sexless<\/strong> still <strong>gender-neutral<\/strong>. Nevertheless, the BGB and SBGG insist on the binary gender principle of man and woman. The <strong>Third gender<\/strong> (<em>diverse<\/em>) cannot become a parent according to the wording of \u00a7 1592 BGB. This consequence could be realised either in the context of a<\/p>\n<ul>\n<li>constitutional interpretation to adapt the content of \u00a7 1592 BGB or<\/li>\n<li>Submission to the BVerfG<\/li>\n<\/ul>\n<p>lead.<\/p>\n<p>The <strong>Federal Court of Justice<\/strong> (BGH, decision of 11 June 2025 - XII ZB 354\/22) has now had to deal with the question of whether a person <em>diverse<\/em> gender can be registered as the father. The proceedings were based on a correction procedure in accordance with \u00a7 48 PStG, as the registry office refused the requested registration.<\/p>\n<p><strong>The case<\/strong><\/p>\n<p>A woman brought in marriage with a person <em>more diverse<\/em> gender identity gave birth to a child. The couple applied for the registration of the <em>diverse<\/em> spouse as the second parent in the birth register. The registry office rejected this and only entered the child's mother in the register. The couple contested this with an application for rectification in accordance with \u00a7 48 (Civil Status Act) PStG. At the same time, however, stepchild adoption proceedings were also conducted, which were ultimately successful, even before the local court ruled on the application for correction. The couple then withdrew their application for rectification. <strong>back<\/strong> and instead applied for the <strong>Determination<\/strong>that the registry office had been obliged from the outset to <em>diverse<\/em> Spouse to be registered as parent.<\/p>\n<p><strong>The decision of the BGH<\/strong><\/p>\n<p>Both the Local Court and the Higher Regional Court dismissed the application for a declaratory judgement as <strong>inadmissible<\/strong> back. The BGH confirmed this view:<\/p>\n<ul>\n<li>An application for a declaratory judgement is not provided for in the Personal Status Act and cannot be derived by analogy with Section 62 FamFG.<\/li>\n<li>The subject of a declaratory judgement procedure can only be a <strong>judicial<\/strong> decision.<\/li>\n<li>The legislator only wanted to enable the correction of erroneous entries, but not to allow subsequent findings on their legality.<\/li>\n<\/ul>\n<p>The BGH clarified: If the desired registration is achieved through adoption, there is no legal institution in civil status law to subsequently review the legality of the official action (here: registry office). The continuation of the rectification procedure <strong>after declaration of completion<\/strong> would have been possible - and probably more effective.<\/p>\n<p><strong>Practical note<\/strong><\/p>\n<p>The decision has practical implications:<\/p>\n<ul>\n<li>If an entry is made as a second parent in relation to a person with <em>more diverse<\/em> gender identity, it is advisable to conduct registration and rectification proceedings under the PStG in parallel with stepchild adoption proceedings in order to allow for judicial clarification. However, under no circumstances should the withdrawal be declared if the parallel adoption procedure has been successfully completed.<\/li>\n<\/ul>\n<p><strong>Conclusion<\/strong><\/p>\n<p>The Federal Court of Justice would obviously have liked to make a substantive decision - and possibly interpret the statutory provision in Section 1592 No. 1 BGB in conjunction with Section 11 para. 1 sentence 2 SBGG in a constitutional manner to the effect that a person with <em>more diverse<\/em> gender identity can become the second parental authority, or the provision would otherwise be subject to review by the constitutional court. The fact that this did not happen was due to the procedural declarations of the parties involved, as the withdrawal of their original application for rectification ruled this out.<\/p>\n<p>It is to be hoped that this issue will be reviewed by a higher or supreme court in the near future. In this respect, you are very welcome to contact me, I would be happy to accompany such proceedings.<\/p>\n<p>In legal practice, however, it is once again clear how crucial it is to choose the right procedural instrument at the right time (here: declaration of termination instead of withdrawal and application for a declaratory judgement).<\/p>\n<p><em>Dr Marko Oldenburger<\/em><\/p>\n<p><em>Specialist lawyer for family and medical law<\/em><\/p>\n<\/div><\/div><\/div><\/div><\/div><\/div><\/section><section class=\"l-section wpb_row height_small\"><div class=\"l-section-h i-cf\"><div class=\"g-cols vc_row via_grid cols_1 laptops-cols_inherit tablets-cols_inherit mobiles-cols_1 valign_top type_default stacking_default\"><div class=\"wpb_column vc_column_container\"><div class=\"vc_column-inner\"><div class=\"w-message color_blue with_icon\"><div class=\"w-message-icon\"><i class=\"fas fa-lightbulb-exclamation\"><\/i><\/div><div class=\"w-message-body\"><p><span style=\"text-decoration: underline;\"><a href=\"\/en\/lawyers-2\/dr-marko-oldenburger\/\" target=\"_blank\" rel=\"noopener\">Dr Oldenburger<\/a><\/span> advises and represents individuals, different and same-sex couples on the path to fertility fulfilment, including surrogacy and international adoptions. Send him an e-mail at (<span style=\"text-decoration: underline;\"><a href=\"mailto:oldenburger@schneiderstein.de\">oldenburger@schneiderstein.de<\/a><\/span>) or use our <a href=\"\/en\/contact-2\/mail\/\" target=\"_blank\" rel=\"noopener\"><span style=\"text-decoration: underline;\">Contact form<\/span><\/a>.<br \/>\nBy the way: We offer country-specific package prices for surrogacy and international adoption procedures from A-Z (fixed prices) or modular fees depending on your service requirements. This means that your expenses can be calculated from the outset. <span style=\"text-decoration: underline;\"><a href=\"\/en\/lawyers-2\/dr-marko-oldenburger\/#topthemen\" target=\"_blank\" rel=\"noopener\">Further information on the desire to have children here.<\/a><\/span><\/p>\n<\/div><\/div><\/div><\/div><\/div><\/div><\/section>","protected":false},"excerpt":{"rendered":"Under current law, the woman who gave birth to the child is the mother. A changed gender identity other than female is irrelevant. Even a male, diverse or unidentified person always becomes the mother. The allocation of the second parental role, on the other hand, is more complicated: legally, it is always paternity, i.e. male. Women can therefore not become fathers.","protected":false},"author":12,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-5455","post","type-post","status-publish","format-standard","hentry","category-unkategorisiert"],"_links":{"self":[{"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/posts\/5455","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/comments?post=5455"}],"version-history":[{"count":0,"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/posts\/5455\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/media?parent=5455"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/categories?post=5455"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.anwaelte-schneider-stein.de\/en\/wp-json\/wp\/v2\/tags?post=5455"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}