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Adoption of a surrogate child is not illegal or immoral
Abroad, children born legally with the help of an anonymous egg donation and a surrogate have a right to two parents. German authorities are not allowed to refuse the adoption of a gay spouse because of immorality, the Higher Regional Court (OLG) Munich ruled in a decision of 12 February 2018 (Ref .: 33 UF 1152/17).
In the US, a couple with a desire to have a child turned to a doctor and learned from this that they are biological twins. The siblings had been adopted as children by different parents. (Image: ilfotokunst / fotolia.com) Surrogate motherhood is prohibited under German law. Doctors do it anyway, threaten them with a fine or up to three years imprisonment. Many couples with an unfulfilled desire to have children are therefore seeking their fortune abroad. They hope for a child with the help of an anonymous egg donation and a surrogate mother.
In this particular case, a gay couple, first married and later married, traveled to Ukraine to fulfill their wish to have children. Using sperm cells of the father and oocytes of an anonymous donor, an artificial insemination was performed in a fertility clinic. The clinic is aware of the data of the egg donor, so that the child can ask her from the age of majority.
A surrogate mother carried the fertilized egg cell, which is allowed under Ukrainian law. When the child was born, the surrogate mother told the German authorities that the child was supposed to be German, and gave her father sole authority.
The father and his gay partner traveled with their child back to Germany and took over the care from the beginning. After all, the partner also wanted to be the parent and adopt the child.
The youth welfare office and the district court Munich rejected this. Although the adoption of the child's well-being, but not required. The district court referred to the legal provisions. These rule out the adoption of the child in principle, if "participated in a law or immoral mediation or transfer of the child for the purpose of acceptance," or another person was assigned or rewarded. Exception: Adoption is required for the child. This is not the case here.
The gay couple struggled. A law or immorality of the adoption was not available. In Ukraine, it is legal that a child is born with the help of a surrogate mother and later released for adoption. Only with the adoption can a reliable legal assignment be established to both parents. The surrogate mother is unable and does not want to build a relationship with the child.
The Higher Regional Court justified the gay couple. "With the help of egg donation and surrogacy is not a law or immoral mediation or transfer of a child for the purpose of acceptance," found the Munich judge. Because the egg donation and surrogacy are allowed in Ukraine. There is also a parent-child relationship between the adopter and the child.
There is also a family connection, since both the genetic father and the adopter have taken care of the child from the beginning.
Although legislators want to avoid surrogacy. "In the evaluation of the adoption request, it is only on the well-being of the child and the prognosis of the emergence of a parent-child relationship," decided the Higher Regional Court. If, nevertheless, the adoption is denied, there is an interference with the rights of the child.
The adoption did not have to be necessary either. It is sufficient that this serves the child's welfare. This is the case if the adoption changes the child's living conditions "so that a noticeably better development of his personality is to be expected". This does not conflict with the fact that the child was born by a surrogate mother. Here, the child is given a stable and reliable home, so that nothing stands in the way of an adoption.
On 10 December 2014, the Federal Supreme Court (BGH) ruled that German authorities must recognize the parenting of a homosexual couple for a child born a surrogate mother, if a foreign court has already established this (Az .: XII ZB 463/13; JurAgentur Message dated 19 December 2014). Since one of the gay partners is genetically related to the child, the decision also "does not deviate from the German legal position to such an extent that its recognition would be intolerable", said the BGH at that time. fle / mwo