(Apr. 29, 2019) In a decision published on April 23, 2019, the German Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal cases, held that German law must be used to determine the parentage of a child born to a surrogate in Ukraine and brought to Germany immediately after birth to stay there permanently. (BGH, Mar. 20, 2019, Docket No. XII ZB 530/17, ECLI:DE:BGH:2019:200319BXIIZB530.17.0, BGH website.) The Court concluded that the surrogate must be registered as the mother of the child because only the woman who bears the child is considered the mother under German law. According to the Court, a divergent registration in Ukraine is irrelevant.
Facts of the Case
The plaintiffs are a married couple living in Germany with German citizenship. In 2015, an egg from the wife that had been fertilized with her husband’s sperm was transferred to a Ukrainian surrogate in Ukraine. The surrogate bore the child in December 2015 in Kiev, Ukraine. Before the child was born, the husband acknowledged paternity of the child at the German Embassy in Kiev with the consent of the surrogate. After the birth, the surrogate testified in front of a notary public that the child was born by means of reproductive technologies via surrogacy and that the plaintiffs were the genetic parents. The civil registry in Ukraine registered the plaintiffs as parents and issued a birth certificate. (BGH paras. 2 & 3.)
When the plaintiffs returned to Germany with the child in January 2016, they registered the foreign birth according to the Ukrainian birth certificate with the German civil registry. However, the German civil registry did not find out that the baby was born by a surrogate until after the German Embassy in Kiev also submitted a request to register the foreign birth. (Id. at 4.) The supervisory authority of the German civil registry therefore filed suit with the district court to instruct the civil registry to correct the registration and register the surrogate as the mother. The Higher Regional Court denied the appeal of the plaintiffs against that correction. The plaintiffs therefore filed an appeal with the Federal Court of Justice. (Id. at 5.)
Background on Surrogacy in Germany
German law provides that only the woman who bears the child can be regarded as the legal mother. (BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, § 1591, German Laws Online website.) It is a criminal offense to perform in vitro fertilization on surrogate mothers. (Embryonenschutzgesetz [ESchG] [Embryo Protection Act], Dec. 13, 1990, BGBl. I at 2746, as amended, § 1, para. 1, no. 7, German Laws Online website). Maternal surrogacy is illegal in Germany, with the Adoption Placement Act stating that “the bringing together of people who will adopt or otherwise take permanent care of a child conceived via surrogacy (purchasing parents) with a woman who agrees to act as a surrogate” is prohibited, punishable by a term of imprisonment of one year or a fine. (Adoptionsvermittlungsgesetz [AdVermiG] [Adoption Placement Act], Dec. 22, 2001, 2002 BGBl. I at 354, as amended, §§ 13b, 13c, 14, translated by author).) Surrogacy agreements are not legally valid in Germany as they violate the Embryo Protection Act and are seen by the courts as contrary to morality. (CIVIL CODE §§ 134, 138; Oberlandesgericht Hamm [OLG Hamm] [Higher Regional Court Hamm], Dec. 2, 1985, Docket No. 11 W 18/85, available in 39 NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 781,783 (1986).)
The Federal Court of Justice held that German law must be applied to determine the legal parentage of the child in the case in question. (BGH para. 15.) German conflict-of-law rules provide that the parentage of a child is governed by the law of the place where the child habitually resides, by the law of the country of his or her parents’ nationality, or by the law that governs the general effects of the marriage of the parents. (Id. at 16; Einführungsgesetz zum Bürgerlichen Gesetzbuche [EGBGB], Introductory Act to the Civil Code [Sept. 21, 1994, BGBl. I at 2494; corrected in 1997 BGBl. I at 1061, as amended, art. 19, para. 1, German Laws Online website.) The Court reiterated that persons have their habitual residence in the place where they have the center of their lives. Their presence in this place must reflect an adequate degree of permanence and cannot be just temporary or intermittent. In order to determine the habitual residence of minors, particularly of infants, it is necessary to assess the parents’ integration in their social and family environment as the child generally shares their social and family environment. The habitual residence of a child and its parents will only differ in exceptional cases. (BGH para. 19.)
In the case at issue, the child had its habitual residence in Germany, because all parties to the surrogacy agreement agreed that the child would go to Germany with the plaintiffs immediately after the birth and remain there permanently. (Id. at 22.) In addition, both Ukrainian and German law recognize the husband as the legal father of the child. The child therefore has German citizenship and is legally present in Germany. (Id.; Staatsangehörigkeitsgesetz [StAG] [Nationality Act], July 22, 1913, REICHSGESETZBLATT [RGBl.] [IMPERIAL LAW GAZETTE] at 583, as amended, § 4, para. 1, German Laws Online website.) In the opinion of the Court, as the child never had his habitual residence in Ukraine, only the surrogate could be registered as the legal mother and not the wife. (BGH paras. 27 & 28.) The Court concluded that the wife must adopt the child in order to become its legal mother. (Id. at 28.)