The German Higher Regional Court (OLG Braunschweig) recently rejected a U.S. judgment in a legal parenthood case. According to German law, legal parenthood is based solely on descent and adoption, but cannot be on a contractual basis (like paying for a surrogate). This rejection has caused turmoil for a German couple who had signed an agreement with a surrogate and her husband in Colorado. While the intended parents have been living with the two children in Germany since 2011, the country now says this is against national law and is denying the recognition of the couple's legal parenthood for the twins.
According to German Attorney Mandy Pecher, this ruling makes it clear that if the U.S. courts don't take all international law criteria into account for the parent's recognition in Germany, the judgment will most likely be denied. It may seem harsh, but German law ultimately serves to protect both women and children from the perils of commercial surrogatehood.
If the case moves onto the German Supreme Court and the court follows Braunschweig's decision, the German intended parents will have to seek a stepparent adoption. While this can take some time (up to 8 months), it's doable. Just recently, a German Higher Court ruled that even in a surrogacy case the adoption must only be in the best interest of the child. As such, there is a very good chance that a stepparent adoption in a surrogacy case like this will be granted if it is done properly and if the intended father is the legal father of the child/children. In this case, the German father is the biological father of the twins which increases the chance of a ruling in his favor.
In cases like this, it's hard not to think the U.S. judgment should be recognized regardless of the current German law. However, it's important to look at international laws before following through with a surrogacy like this because the results can be stressful for not just the intended parents, but for the children as well.
At Worldwide Surrogacy, we always recommend that intended parents from abroad obtain legal counsel in their home countries before moving forward to the contract phase. The recent legal issues in Germany make it imperative that international intended parents have legal counsel to ensure that any foreign documents are written properly for processing through the German courts, as well as through any other international legal systems.
As of now, the German couple in this case still has guardianship over the twins.
