Social changes come and go. Until they are legally mapped, they are often subject to a different time calculation. “Is the legal assignment of a child to mother and father according to §§ 1591, 1592 BGB still up-to-date?” Pawel Rydygier investigated this question in his thesis. In this interview, he answers current topics on family law.
What is family?
In my view, family is a social bond between individuals who are in a deep relationship of solidarity with each other, which is fundamentally permanent. In my opinion, this goes beyond the traditional understanding of the family, which consists of a community of responsibility between parents who are married to each other. Not only do medical possibilities now make it possible for genetic, biological and social parenthood to diverge, but the family model has also changed considerably in social terms. The definition of family must therefore always be seen in the context of the respective zeitgeist.
Mother-Mother-Child. This is not new to us. There are already legal regulations for this. However, stepchild adoption in times of “marriage for all” is increasingly criticized and perceived as discriminatory, since children born into an opposite-sex marriage automatically have a woman and a man as mother and father. In your opinion, would there be better legal options?
The legal regulations on “marriage for all” left questions of parentage law unanswered and have not been able to fully eliminate existing inequalities; co-motherhood or co-paternity still do not exist. This means, for example, that two legally married women do not automatically both become mothers of one child. This means that the child has only one legal parent for the time being. The woman who did not give birth to the child can get the legal status of a parent only through stepchild adoption.
Legislators could follow the example of other states and, for example, create a recognition option for same-sex couples and extend to same-sex spouses the automatic rule that the father of the child is the man who was married to the mother at the time of the child’s birth. It would also be conceivable to replace legal paternity with a gender-independent second parenthood, which exists by virtue of marriage, recognition, or establishment. This would not only pave the way for co-motherhood or co-fatherhood, but the child would also no longer be disadvantaged and would have two parents from birth – with all the resulting rights and obligations.
And what would that look like in the father-father-mother-child constellation?
A “real” plural parenthood with more than one mother and father does not exist under German law. However, it is quite conceivable that individual parental rights may be transferred to more than two persons, for example custody. However, there is hardly any freedom of design in this respect. Particularly in cases where the child has both legal parents, it therefore seems questionable whether the legislature considers a liberalization to this effect to be necessary and appropriate at all. There seems to be great concern here about the feasibility of implementation in everyday life.
For example, it would have to be clarified who is entitled to custody in the event of separation (in the case of a multi-parent family, this would also include the question of who separates from whom and who remains together). Inheritance and maintenance issues have also not yet been resolved in cases of multi-parent families.
Since 2017, the so-called “Sperm Donor Registry Act” has been in place, which is intended to create more security for donors and children. It comes into play for donations that go through fertility centers. Exactly what safety does it entail and what about private donations at home without any medical support?
With the Sperm Donor Registry Act, the legislature has for the first time created a binding regulation for the storage and processing of donor data. Thus, donor data will now be stored in a central registry for a period of 110 years. The identity of the recipient and the data of the child born as a result of the sperm donation are also recorded in the register. Anyone who suspects that he or she has been conceived through sperm donation by means of medically assisted fertilization has a right to information from the sperm donor register. The sperm donor is also protected, he can no longer be established as the legal father of the child. A long overdue regulation in favor of the sperm donor and the child – after all, the child is also obligated to support its legal father.
However, the registry only records official sperm donations that were also used as part of medically assisted treatment and also only those cases that occurred after the effective date. Thus, private sperm donors are not protected from a determination of paternity. For lesbian couples, however, a reliable regulation of private sperm donation would be of great importance, because a renunciation of the legal paternity cannot be contractually agreed upon between the donor and the recipient. The private sperm donor therefore bears the risk of being established as the legal father of the child at any time. Existing families could be split as a result.
From childhood we know that mother and child are one. Biological-genetic at first and later also psycho-social. This is reflected to us in literature, film, painting, etc. Through reproductive medical procedures, however, this self-evidence is sometimes also called into question. For example, when egg or embryo donation is involved. What does the law say about this?
Egg donation is the transfer of a foreign, unfertilized egg to another woman, for example because she cannot produce eggs herself. The child is then carried and born by the woman, but is not genetically related to her. If, on the other hand, the egg is already fertilized and capable of development, it is called an embryo.
Egg and embryo donation are prohibited by law in Germany. Even the removal of the embryo is prohibited if it is done with the aim of subsequently donating the embryo. In many European countries, on the other hand, embryo donation, just like egg donation, is permitted and is also often performed to fulfill the desire to have a child.
Under German law, the woman who gave birth to the child is the child’s legal mother, even if there is no genetic relationship between her and the child. Therefore, in contrast to surrogacy, those affected are not confronted with problems of parentage law with regard to the legal status of parents.
What is family in 15 years?
The numerical development of alternative forms of life and family and also the case law to date make it clear that the question of parentage – and thus also of the family – is subject to constant change. I would like to see those forms of life that we already accept as families in society today also receive a stable and reliable legal framework in the future, which takes into account both current developments in medicine and the changing circumstances of life in society. Only if the law of parentage reflects current social, ethical, societal and legal considerations will it meet with the broadest possible acceptance by all and thus be able to adequately represent the concept of family.
