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Article Germany: Federal Constitutional Court Reinforces Rights of Biological Fathers

On April 9, 2024, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) ruled that the legal provisions on the right of the biological father to contest the paternity of the legally recognized father of the child are incompatible with article 6, paragraph 2 of the German Basic Law (Grundgesetz, GG), the country’s constitution. Article 6, paragraph 2 codifies the constitutional right of parents to care for their children and to maintain and exercise parental responsibility. In the court’s opinion, the legislator must find a way for parents to exercise this right and must not necessarily limit legal parenthood to two people. (BVerfG decision, para. 42.)

Facts of the Case

The applicant is the biological father of a child born outside of marriage. He was in a relationship with the child’s mother, but they ended the relationship a few weeks after the child was born. He continued to have contact with the child. The mother entered into a relationship with a new partner who, with the mother’s consent and after the biological father applied to have his paternity recognized, became the legally recognized father of the child. (Higher Regional Court decision, para. 1.) The applicant initiated legal proceedings to challenge the paternity of the new partner. The Higher Regional Court (Oberlandesgericht) dismissed the application on the grounds that a social and family relationship had developed between the child and the mother’s new partner. (Para. 15.)

In his constitutional complaint, the applicant alleged a violation of his parental right guaranteed by article 6, paragraph 2 of the Basic Law. (BVerfG decision, para 12.)

Decision

The Federal Constitutional Court held in favor of the applicant, stating that the Higher Regional Court’s decision violated the parental rights of the applicant guaranteed by article 6, paragraph 2 of the Basic Law. (Para. 30.)

According to section 1600, paragraph 2 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) the biological father may not challenge the paternity of the legal father if there is a social or family relationship between the legal father and the child. A relationship of this nature exists when the father exercises actual parental responsibility for the child. (§ 1660, para. 2.) Parental responsibility includes having a say in all decisions regarding the child’s life and development, as well as taking care of the person and assets of the child. (§ 1626, para. 1; BVerfG decision, para. 36.) Because being recognized as the legal father is a requirement to exercise parental responsibility for the child, section 1600, paragraph 2 of the German Civil Code therefore permanently prevents the applicant from exercising legal parental responsibility. (BVerfG decision, para. 68.) The court stated that it must be possible for parents to maintain and exercise parental responsibility because the parental rights guaranteed in article 6, paragraph 1 of the Basic Law are linked to possessing parental responsibility. (Para. 41.) Therefore, the court held that section 1600, paragraph 2 of the German Civil Code violated the parental rights of biological fathers. (Para. 31.)

Departing from its previous decisions, the court ruled that biological fathers are holders of the right of parental care and can rely upon the parental rights guaranteed in article 6, paragraph 2 of the Basic Law. This also applies when the mother and the legally recognized father hold parental rights under this provision. The court stated further that the legislature is empowered to confer legal parenthood on more than two people, meaning the mother, the biological father, and the legally recognized father. (Para. 42.) A child may have two fathers who can both rely upon the rights guaranteed by article 6, paragraph 2 of the Basic Law. The court emphasized that if the legislature decides to limit legal parenthood to two persons, it must base its decision on the parentage of the child. However, the legislature must not investigate who the biological father is but may link legal paternity to the fact that a child was born within a marriage. (Para. 45; BGB, § 1592, no. 1.)

New Parentage Law

Before the court’s ruling, the German Federal Ministry of Justice (Bundesjustizministerium) announced its intention to reinforce the legal position of biological fathers as a part of an ongoing reform of parentage law. Following the court’s ruling, Federal Minister of Justice Marco Buschmann declared he intended to carry on with revising parentage law. However, he stated that even though the court had ruled that more than two people could have parental rights under the Basic Law, the legislature has leeway and would continue to limit legal parenthood to two parents.

Prepared by Eva Dauke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, April 23, 2024

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Chicago citation style:

Gesley, Jenny. Germany: Federal Constitutional Court Reinforces Rights of Biological Fathers. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-04-22/germany-federal-constitutional-court-reinforces-rights-of-biological-fathers/.

APA citation style:

Gesley, J. (2024) Germany: Federal Constitutional Court Reinforces Rights of Biological Fathers. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-04-22/germany-federal-constitutional-court-reinforces-rights-of-biological-fathers/.

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Gesley, Jenny. Germany: Federal Constitutional Court Reinforces Rights of Biological Fathers. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-04-22/germany-federal-constitutional-court-reinforces-rights-of-biological-fathers/>.