German family law undergoes most significant change in decades

30-08-2022

Central Europe

Lennart Nijenhuis, CNE.news

Father with child. Photo AFP, Jaime Reina

The traffic light coalition in Germany discusses one of the most significant changes to German family law in history. They want to alter the definition of parentage so that custody over children becomes easier for gay and lesbian couples. Susanne Hierl (CDU) criticises the plans of the government.

Currently, German family law prescribes that when a child is born into a marriage, the husband is regarded as the father, regardless of whether he is biologically connected to the child. The wife in the marriage is always considered to be its mother, Die Tagespost writes.

However, with the legalisation of same-sex marriage, this definition could lead to some difficulties. The woman who has a child in a lesbian relationship is considered to be the mother. However, her partner has to adopt the child to receive legal custody. If anything happens to the child's biological mother before the adoption procedure is finished, her partner would not legally be connected to it.

This issue has sparked controversy because critics say that the facts are the same as in a heterosexual marriage and thus should be treated the same. According to them, the partner of a lesbian mother should automatically receive custody over the child, just like the partner of a heterosexual mother, they argue.

However, Susanne Hierl, CDU rapporteur for family law in the legal committee, sees significant problems with this construction. She says that a father biologically always needs a father. For her, the interest of the child is decisive. If a child has two lesbian parents and its father is known, it would technically have three parents. That would lead to other judicial difficulties, as there is no legislation on multi-parent families.

Although Hierl acknowledges that from a legal point of view, there is no objection to co-motherhood if the father is unknown, same-sex marriages are not the same as heterosexual marriages.

Thus, she finds a solid ground for treating them differently. Co-motherhood would most likely lead to the fact that two mothers will be written on their child's birth certificate. Thus, biology would be denied, as human life arises from an egg cell and a sperm cell. Hierl: "We see the need for regulation, but completely decoupling descent from biology cannot be the solution."

Even more problematic would be the custody of homosexual male couples. "For homosexual men to become parents, they need the mother", Hierl explains. She points out that the way for homosexual men to become fathers is to resort to surrogacy, which is forbidden in Germany.

Despite the problems and objections against the family law amendment, Hierl expects that a majority of the Bundestag will vote in favour of co-motherhood.

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