Family
Federal Constitutional Court expands the definition of parents
The biological father of a now three-year-old son had sued his way through the courts to the highest German court (symbolic image). photo
© Sebastian Gollnow/dpa
The highest German court has heard a complaint from a man who wanted to assert his right to paternity. A key aspect of the ruling could trigger social debates.
The legislature can determine which people are considered the legal parents of a child – i.e. who receives and exercises parental responsibility for the children. In particular, the Basic Law guarantees a biological father the opportunity to become the legal father of his child. (Az. 1 BvR 2017/21)
Rights of biological fathers strengthened
Since both legal parents and biological parents are bearers of the basic parental rights, there could be a constellation of a mother, a biological father and a legal father. With its ruling, the highest German court strengthened the rights of biological fathers and emphasized that it also had the well-being of the children in mind.
The legislature must create new regulations. Federal Justice Minister Marco Buschmann (FDP) had already announced this. A man from Saxony-Anhalt had sued.
The court emphasized that parents within the meaning of the Basic Law are the “natural parents of the child in the traditional sense”. According to the judges’ definition, this means “the man and the woman who conceived the child through sexual intercourse with their germ cells, if this woman then gave birth to the child”. The ruling does not necessarily apply to genetic parents, for example in the case of artificial insemination.
According to the decision, anyone who is a parent within the meaning of the Basic Law must in principle have the opportunity to take legal responsibility for their child. It is constitutionally permissible to technically rule out legal paternity of more than one father. In this case, the biological father must have a sufficiently effective procedure to be able to become a legal father. The court found that the current legal situation did not take this into account.
The First Senate ruled that the legal regulations on contesting paternity by biological fathers were incompatible with the fundamental rights of parents. The law will remain in force until a new regulation is adopted, but no later than June 30, 2025. This means that biological fathers should be able to continue to challenge paternity on the basis of current law if they consider this to be promising. However, initiated procedures can be suspended upon request.
Father complained through the courts
The undisputed biological father of a now three-year-old son had sued in order to be legally recognized in the role. However, the child’s mother had her new partner registered as the legal father a few months after the birth. The plaintiff had already filed an application to establish his paternity. The legal proceedings dragged on and the man was finally dismissed at the Naumburg Higher Regional Court (OLG). He currently has access and information rights, but to a lesser extent.
The Higher Regional Court had referred to an earlier decision of the Federal Court of Justice (BGH), according to which the right of the biological father to challenge paternity was excluded without exception if there was a socio-familial relationship between the child and the legal father at the time of the last oral hearing at the family court relationship exists. This is assumed if the man and the mother are married or the man and the child have lived together at home for a long time.
The latter was the case in the specific constellation. The Federal Constitutional Court has now overturned the Naumburg decision and referred the proceedings back to the Higher Regional Court.
Changes to the law are being planned
In practice, the previous view was highly controversial. Experts from both the judiciary and psychology spoke out in favor of changes at the oral hearing in Karlsruhe in September. Justice Minister Buschmann had already announced a legal reform before the verdict. He therefore wants to strengthen the legal position of biological fathers who want to take responsibility for their child as legal fathers.
Key points for modernizing parentage law include a blocking effect of a determination procedure. “As long as legal proceedings are ongoing in which a man wants to have his paternity established, in principle no other man should be able to recognize paternity of this child,” says the ministry. The draft laws are expected to follow in the first half of 2024.
When the key points were presented, however, it was also said that a child could only have two legal parents. It remains to be seen whether Buschmann will stick to this point after the verdict. The minister announced a statement.