Judgment Transsexual mother can not be legal father

BGH: biological mother is also legal mother
Children should always have a mother and a father, not only biologically, but also legally. Therefore, even after their legal recognition as a man, a transsexual biological mother can not have her paternity registered in the birth register, the Federal Supreme Court ruled in a decision published on Monday, 25 September 2017 (Ref .: XII ZB 660/14). The child has a constitutional right to knowledge about his or her descent and thus a right to know who the mother and father is, emphasized the Karlsruhe judges.

(Image: Halfpoint / fotolia.com)

The decisive legal dispute was about a woman-to-man transsexual from Berlin. Even as a woman he had married a man, but then adopted male names during the marriage. In April 2011, he was legally recognized as a man, even if he still had female genital organs. The divorce from the husband took place in 2013.

As part of the gender reassignment, the applicant underwent treatment with male hormones. However, he discontinued this in order to fulfill the existing desire to have a child and to become fertile again for a certain time.

In fact, the transsexual gave birth shortly after the divorce - not from her ex-husband, but from the "cupping method" of a sperm donor. For this child he wanted to be registered in the birth register as a father.

The registry office had doubts as to whether this was possible. Both the district court Berlin-Schöneberg and the Berlin Court of Appeal rejected this. A child can not - even legally - have two fathers but no mother at the same time, said Kammergicht (Az .: 1 W 48/14, JurAgentur-News of 30 October 2014).

The BGH in its resolution of 6 September 2017 also agreed to this. According to the law on transsexuals, the rights and duties depending on gender were, according to the assignment initiated by the court, according to the new sex. The legal relationship with the children remains unaffected. This applies even if a woman-to-man transsexual was recognized as a man and then still gives birth to a child.

If he has given birth to a child, he is considered a mother, the BGH ruled. In the birth register then the earlier female first names of the "mother" would have to be entered. Legislators may legitimately determine that a child's ancestry "is not attributed to two legal mothers or fathers, contrary to the biological facts".

Maternity and paternity are not interchangeable afterwards. Otherwise, this would have far-reaching consequences for the legal system, warned the XII. BGH Civil Division. Thus, there are different legal implications, whether someone is a mother or father, for example, in the custody of unmarried parents. Therefore, there could only be one mother and only one father.

Also, the child has constitutionally a right to know how his descent and thus who his mother. The entries in the birth register were used for clarification.

Finally, the registration of the original female first names of the transsexual parent prevents other third persons from finding evidence of transsexuality. The child could prove his origin later, without third persons speculating about a transsexuality of the parents. fle / mwo