European Court says (trans) mother cannot be named father
The European Court of Human Rights (Strasbourg) has decided that a German mother cannot be recognised as the father in the birth register. And the sperm donor cannot be registered as mother.
The mother who delivered the child, had changed her legal gender before the pregnancy and lived as a transgender man. And the sperm donor lives as a woman at the moment.
The court published this decision on Tuesday.
According to the judges, the mother is the person who carries the child and not who donates the sperm. The European Court of Human Rights has dismissed complaints by a trans woman and a trans man. This confirms earlier decisions by German courts, as ZDF reports based on the Evangelische Pressedienst (EPD).
In one of the two cases, a trans woman had requested, citing the right to respect for private life (article 8 of the European Convention), to be registered as the mother of the child conceived with ‘her’ semen. A Berlin registry office decided in 2015 not to enter the plaintiff, who was born as a man, as the mother in the birth register because she had not given birth to the child. Instead, the person who actually gave birth to the child is listed as the mother. Both complained about this action.
In 2017, the Constitutional Court of Justice (Karlsruhe) ruled that the plaintiff trans-woman had to be registered as the father because she was involved in the conception of the child through her sperm. The European Court of Human Rights has now agreed with the Constitutional Court.
The second case concerned the complaint of a trans man who wanted to be entered as the father of his child on the birth certificate. The plaintiff was born a woman and gave birth to the child after his identity as a man had already been recognised.
After the Berlin district court in Schöneberg recognised the plaintiff as a man in 2011, he said he had discontinued the hormone treatment and had become fertile again. In 2013 ‘he’ gave birth to a child. After the birth, the plaintiff applied to be registered as the child's father since he was a man. He also requested that no mother be entered since the child was conceived through a sperm donation.
However, against his will, the district court registered him as the child's mother with his female name, which had already been filed at that time. An appeal to the Constitutional Court of Justice was rejected because the court held that the mother of a child was the person who gave birth to the child.
The Constitution does not oblige to create a gender-neutral right of descent, according to which paternity and motherhood are seen as purely social roles and abolished as legal categories.
After the Federal Constitutional Court rejected a lawsuit in 2018, the trans man went to the European Court of Human Rights. The latter could not find any misconduct by the German authorities and courts. There was no serious discrimination.
The interest group Bundesverband Trans expressed disappointment about the verdicts. “It clearly shows an antiquated family picture”, the movement said. The association called for a political initiative.
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