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Judgments No parental rights for clients of a commercial surrogate mother
Brunswick (jur). Commercial surrogacy violates essential principles of German law. The clients are therefore not recognized as legal parents in Germany, the Higher Regional Court (OLG) decided Brunswick in a judgment on Thursday, April 20, 2017, announced (Az .: 1 UF 83/13). It was thus against a judgment of the Federal Court of Justice (BGH) and allowed the revision there.
Specifically, the OLG dismissed a couple from the area of Brunswick. With donated eggs and the man's sperm, she had twins hired by a surrogate mother in Colorado, Colorado. Based on the contracts concluded for this, a US court had designated the German couple as their parents even before birth. The birth certificates issued in Colorado also identify them as parents.
(Image: nerudol / fotolia.com) Since the end of 2011, the couple lives with both children in Germany. It exercises the guardianship and can therefore also act here for the children. The legal parenting had refused the district court Braunschweig the couple but.
This has now been confirmed by the Higher Regional Court. A recognition of the US court's decision would "lead to an outcome that would be incompatible with the essential principles of national law". Because then the legal parenting "basically based solely on descent and adoption, but not on a contractual basis".
Commercial surrogacy is not allowed under the Embryo Protection Act and the Adoption Mediation Act. The deliberate circumvention of this prohibition stood in principle "the retrospective acknowledgment of a parental status corresponding to the German right". The basis of this prohibition was human dignity and the well-being of the child. The German legislator had thus "the protection of the surrogate mothers and children over the wishes of clients for parenting".
Thus, in the legal parenting and the mental bond of the surrogate mother to the discharged child must be considered, argued the Brunswick judges. Obviously, this was insufficiently done, "since the ruling of the US Court of Justice in Colorado was made without hearing the surrogate mother and before the birth".
With this judgment of April 12, 2017, the OLG Braunschweig deviates from a BGH judgment from 2014. According to this, the German authorities must recognize the legal parenthood of a gay couple living in a registered partnership because a court in California awarded them (judgment of 10 December 2014, Ref .: XII ZB 463/13, JurAgentur Report dated 19 December 2014) ). The BGH had also referred to the best interests of the child. On the other hand, the OLG Braunschweig argued that legal parenting was not essential to the development of the child, and the guardianship was sufficient.
In addition, the OLG referred to a recent judgment of the European Court of Human Rights (ECtHR) in Strasbourg on Italy (judgment of 24 January 2017, file no .: 25358/12, JurAgentur report dated 27 January 2017). In it, the Strasbourg judges also stressed the wide scope of the countries in terms of reproductive medicine. The protection of the family then presupposes the existence of a family; By contrast, a right to children can not be derived from the European Convention on Human Rights. mwo / fle