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Germany needs to broaden its concept of parenthood

2 mins read
April 10, 2024

Germany’s highest court has rendered a verdict on the case of a man seeking to assert his right to paternity, thereby acknowledging the parental status of two fathers.

Step family
A bill in favor of biological fathers is in discussion in Germany. | © Julia M Cameron

On Tuesday, the German Constitutional Court finally ruled in favor of a father from Saxony-Anhalt who demanded legal recognition as the representative of his child.

Last September, the biological father of a son, now aged three, filed a complaint to be legally recognized for his parental role. A few months after the birth, the child’s mother registered her new partner as the child’s legal father.

He tried to contest his new partner’s paternity in court but was unsuccessful. The Naumburg Court of Appeal ruled that he had no right to challenge the decision and declared that a close relationship had developed between the child and his legal father.

As per the current legislation outlined in Article 1600, paragraphs 2 and 3, of the German Civil Code, a biological father lacks the authority to contest paternity if a “socio-familial relationship” has been established between the child and their legal father.

A few weeks ago, the biological father lodged a constitutional appeal against this decision, asserting that the legal provision infringes on his fundamental right as a parent, enshrined in Article 6 of the German Constitution, which states that “raising and educating children are the natural rights of parents and an obligation that falls to them as a priority.”

Two legal fathers

The decision of the Constitutional Court therefore strengthened the position of fathers fighting to obtain legal paternity of their biological children, by authorizing three legal representatives: the father, the biological mother, and the mother’s partner.

“The current family law does not sufficiently take into account the fundamental parental rights of biological fathers,” declared the President of the Constitutional Court Stephan Harbarth, when announcing the judgment, which claimed the current regulations on the challenge of the legal paternity incompatible with the Basic Law (German Constitution).

The ruling said the new legislation must consider the legal parenthood of the biological father alongside that of the mother and the registered legal father. Thus, legislators could allow two legal fathers if they wished.

If, on the other hand, he sticks to a limitation of legal parenthood to two parents, there must exist in favor of the biological father a sufficiently effective procedure which allows him to become the legal father of his child himself instead of the current legal father,” the court wrote. Current regulations are insufficient in this regard.

The current law will continue to be enforced until new regulations are adopted, no later than June 30, 2025. Ongoing proceedings can be suspended upon request during this transitional period, Harbarth said.

Amendment to the law in progress

Justice and psychology specialists both spoke in favor of these legal changes during the oral hearing in Karlsruhe.

Federal Justice Minister Marco Buschmann (FDP) had already announced a reform of the law prior to the court’s judgment. If the rights of biological parents are to be protected, he says, the principle that a child cannot have more than two legal parents must be upheld. This statement leans in favor of legislation that better protects biological parents, without endorsing a legal framework that allows for the recognition of two fathers or mothers.

The question of whether such conflicts could not be resolved by allowing the child to have two legal fathers or mothers was a measure that was widely discussed during the constitutional hearing. The bills should follow before the end of the first half of 2024.

Julie Carballo

Julie Carballo is a journalist for Newsendip.

She used to work for the French newspaper Le Figaro and at the Italian bureau of the international press agency AFP.