Family Law Queer Families

Same-sex marriage and the third gender are legally recognized in Germany. But what are the consequences for the families concerned? An interview with professor of family law Nina Dethloff.

Professor Dethloff, how many parents can a child have?

We already know from stepfamilies that children can have more than two parents. Reproductive medicine gives rise to the same situation: in the case of a sperm or egg donation (the latter is still outlawed in Germany), the donor is also the child’s genetic parent. If a couple opts to use a surrogate mother abroad in order to conceive a child, the child will likewise have at least three parents – the surrogate or birth mother and the parents with whom it grows up. If these are not the child’s genetic parents because an egg or sperm donor – or indeed both – have been used, a child can have up to five parents from birth. That said, as in most other countries the number of legal parents is limited to two in Germany. However, multiple parenthood is already recognized by law in some countries such as Canada, and for example in the state of California.

Since January, German law has recognized a third gender – known as “diverse” – alongside “female” and “male”. What consequences does this have for the naming of parents? Father, mother, X?

None, so far! Something urgently needs to be done here. There is even a lack of any common term in everyday language. It could be that the somewhat antiquated-sounding word “Elter” could see a renaissance. Otherwise the only German word that exists is “Elternteil”, which of course makes single parents appear deficient. In any case, a gender-neutral term is also required in German parentage law, which is still based on a two-gender concept. Thus in future the word “Elter” or “Elternteil” might be used to designate the person who gave birth to the child or the person who is married to the birth mother.

What prospects do gay and lesbian parents in Germany have when it comes to legal protection of their relationship to their child?

The introduction of same-sex marriage has not yet had any impact on the laws governing children: if a child is born into an opposite-sex marriage, the mother’s husband will automatically become the child’s legal father upon birth – even if he is not the child’s biological father. By contrast, the co-mother in a same-sex marriage can only become a legal parent following a lengthy adoption process. This has considerable disadvantages for the child because the co-mother has no right of custody until she has adopted the child, and there are no child support or inheritance rights whatsoever. As early as 2016, the 71st Deutscher Juristentag (the Association of German Jurists) recommended that lawmakers comprehensively reform Germany’s parentage law – as did the Federal Ministry of Justice and Consumer Protection’s working group on parentage law in 2017. Children who grow up in same-sex partnerships must no longer be discriminated against.

The right to know one’s own parentage is enshrined in law. How is this law affected by reproductive medicine?

Knowledge of one’s own genetic origins is very important when it comes to personal identity. This is protected by law in Germany’s constitution. For children who are conceived with the aid of reproductive medicine, there is a risk of this right being lost. Admittedly, the sperm donor register that was created recently has improved the situation considerably. Children conceived from 1 July 2018 on can demand access to the donor’s data stored in this register. However, this applies only to a donation made to a sperm bank. No such option is available in the case of a privately-arranged sperm donation, an embryo or egg donation, or conception via a surrogate mother. In such cases, it is up to the parents to tell their child about its origins and the circumstances of its conception in an age-appropriate manner.

In which countries do you see a chance of same-sex marriage being approved?

I see chances everywhere! Who would have thought 50 years ago, when homosexuality was still punishable by law in many western countries, that same-sex marriage would one day become so widespread? And that this would be the case even in countries with such a strong Catholic influence as Ireland. In the western world same-sex marriage is most likely already prevailing. Social acceptance is also growing in those countries where it is not yet available. Draft laws are being debated in many places. As a result of court rulings, same-sex marriage is likely to soon become a reality in further South and Central American countries such as Costa Rica, Chile, Panama and Peru. In Asia, Taiwan is the first country to permit marriage between same-sex couples. It is often the case that the recognition of same-sex marriages entered into abroad constitutes a first step – hopefully this will also happen in Hong Kong. Marriage for all is a human right, and the battle against discrimination for reasons of sexual orientation is continuing.