Baby feet in the hands of the mother © Liudmila Fadzeyeva (shutterstock)
The Celle Higher Regional Court considers it unconstitutional that a woman's spouse cannot be recognized as the "co-mother" of her child. Now the Federal Constitutional Court must decide as next instance.
The application of a lesbian couple for equal recognition as parents will now be forwarded to the Federal Constitutional Court, as a spokesman for the Higher Regional Court announced in Celle on Wednesday. From the perspective of the 21. Civil Senate lacks provision in Civil Code for same-sex couples regarding motherhood and fatherhood.
The women had previously failed with their application in the first instance. One of them had become pregnant by means of an anonymous germ cell donation. Before the birth of the child, her partner had declared before a notary public that she was a "co-mother" and wanted to take responsibility for the child. After the birth, however, the responsible registry office and the district court of Hildesheim refused to register this "co-maternity".
Vested right to care and education
In the court decision from Celle it is now said: "As for natural parents also for desire parents applies that straight to them the well-being of the child is more at the heart than any other person, also the donor parents."In cases of artificial insemination, the joint decision of both partners is a prerequisite for the creation of new life. Her partner also wants to take on permanent responsibility for the child in agreement with the mother.
At the same time, the right to care for and educate the child, which is guaranteed by the constitution, follows from this. The donors of the germ cell, on the other hand, express through the anonymous donation that they do not want to take on this parental position. For the same reasons, the Senate finds that the fundamental right of the child concerned to be guaranteed care and upbringing by his or her parents is also violated.
Court sees a constitutional duty on legislature to act to establish status for such "co-parents" in statute. It also pointed out that comparable questions also arose in the case of a same-sex marriage between two men.
The Green member of the Bundestag Ulle Schauws urgently demanded a reform of the parentage law. The courts would have to pay for what the policies of the grand coalition had "screwed up". A policy of obstruction in the queer and a modern family policy is "intolerable and undermines the confidence in the role of the parliament".
The need for reform is urgent, since the unequal treatment affects children. In the case of a same-sex marriage, the mother's wife can only become the child's second legal parent by means of a costly and lengthy stepchild adoption process. This regulation is contrary to the best interests of the child and is not compatible with the principle of equal treatment as set out in Article 3 of the Basic Law.
The Lesbian and Gay Association also called for a speedy reform.
Ministry works on reform
A spokesman for the Federal Ministry of Justice said the ministry was working on such a reform. The discussions with the coalition partner in addition are not yet locked.
In an interview with the Catholic News Agency (KNA) last August, Federal Justice Minister Christine Lambrecht (SPD) had stated that she wanted to introduce "co-motherhood" for lesbian couples in the reform of the law of parentage. This means that in addition to the birth mother, another woman can be the mother without an adoption procedure.
According to the Society for Civil Liberties, there is a nationwide increase of about 14.000 children with non-heterosexual parents. Many lesbian couples are affected by the legal discrimination, but also couples in which one partner does not have a gender entry or has a diversity entry.