Germany: absurd Supreme Court decision paves way for illegal surrogacy

This decision of the Bundesgerichtshof (BGH), the supreme judiciary instance in Germany for all civil matters, has not been reported by many of the mainstream media. But it is surely ground-breaking in several ways: with a judgment that stands in clear contradiction to the law of the country, the BGH has ordered that German public authorities must legally validate foreign decisions on family status, even if those decisions are (1) obviously false and (2) in clear contradiction to domestic German law. With this, the BGH follows the equally misguided decisions of the European Court of Human Rights in the cases of Menesson v. France and Labassée v. France, which were based on similar facts.

The decision was about the case of a gay couple who in order to fulfil its aspirations of “parenthood” had used the services of a Californian “surrogate mom”. Despite the self-evident fact that by nature two persons of the same sex can never jointly be parents of child, a law court in California ordered the two gay men to be registered as the “parents” of the baby that had been “made” on their behalf, using the sperm of one of the two “parents” and a “donated” ovum. The same-sex “parents” then brought “their” child to Germany, where they requested the transcription of the US birth certificate into the German birth register. The German authorities refused this on the grounds (1) that surrogacy is prohibited in Germany, (2) that German law recognizes as a child’s mother the woman who has given birth to it, and (3) that the fiction of same-sex “parenthood” was contrary to the German public order.

The BGH has now overruled these decisions, saying that despite the evident deviation of the Californian court decision from the principles and values underpinning the relevant German legislation, that decision was not so deviant as to be in contradiction to the German public order.

This finding is truly astonishing, given that one of the laws that is set aside here provides for criminal sanctions against those who, contrary to the law, conclude agreements on “surrogate motherhood”. Quite obviously, such a criminal prohibition is rendered nugatory if such agreements, just because they have been concluded in another country, can have legal effects in Germany.  This decision of the BGH is thus in fact nothing else than an invitation letter to disrespect the law. It renders completely ineffective the laws that the court was called to enforce, and is thus an illegal decision.

Quite amazingly, the BGH itself recalls the general-preventive purpose of the ban against surrogacy, but fails to explain how this purpose can be achieved if the law can so easily be circumvented.

As is typical in such cases, the Court tries to base its absurd conclusions on the “interests of the child”, which are a “priority”. According to the Court, it is better for the child to have two “parents” instead of one – and given that the woman who has given birth to it was not legally recognized as the child’s mother in her own country, she should also not be treated as such in Germany. In other words, legal fiction supersedes reality.

The supreme judges may not be aware, but their careless approach to the factual aspects of the situation that the laws must regulate will ultimately undermine the credibility of the legal system as a whole. How can, for example, a legal system prohibit and sanction false testimony before a court, if at the same time a court issues an order according which information that everybody knows to be false must be transcribed into a public registry? Besides that, the notion of “parenthood” is silently transformed from a biological fact into a legal artefact: henceforth, being someone’s “parent” is apparently nothing more than a social function.

Next year, the BGH will probably order the Sun to rise in the West and sink in the East. Hopefully, the Sun will obey…

Both the decision and a press release summarizing it are available in German on the Court’s website.