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OLG Munich: adoption by gay partners must serve the child's best interests
Children born legally abroad with the help of anonymous egg donation and a surrogate mother have the right to two parents. German authorities must not refuse adoption to a gay spouse because of illegal behavior and immorality, the Higher Regional Court (OLG) Munich ruled in a recently published decision of February 12, 2018 (file number: 33 UF 1152/17).
Surrogacy is prohibited under German law. If doctors do so, they face a fine or up to three years in prison. Many couples with an unfulfilled desire to have children therefore seek their happiness abroad. They hope to have a child with the help of an anonymous egg donation and a surrogate mother.
In this specific case, a gay couple, initially partnered and later married, traveled to Ukraine to fulfill their desire to have children. Artificial insemination was carried out in a fertility clinic using sperm from the father and eggs from an anonymous donor. The clinic knows the data of the egg donor so that the child can request it from the age of majority.
A surrogate mother carried the fertilized egg, which is allowed under Ukrainian law. When the child was born, the surrogate mother declared to the German authorities that the child should be German and gave the father the power of sole concern.
The father and his gay partner traveled back to Germany with their child and took care of them from the start. The partner finally wanted to be considered a parent and adopt the child.
The youth welfare office and the district court in Munich refused to do so. Adoption is in the best interests of the child, but is not necessary. The district court referred to the legal provisions. These generally preclude the adoption of the child if "they were involved in mediating or transferring the child illegally or for the purpose of acceptance" or another person was commissioned or rewarded with this. Exception: adoption is required for the child. However, this is not the case here.
The gay couple struggled. The adoption was not illegal or immoral. In Ukraine, it is legal for a child to be born with the help of a surrogate mother and later released for adoption. Only with the adoption can a reliable legal assignment to both parents be established. The surrogate mother was unable and did not want to build a relationship with the child.
The OLG agreed with the gay couple. "With the help of egg donation and surrogacy, it is not illegal or immoral placement or transfer of a child for the purpose of acceptance," said the Munich judges. Because egg donation and surrogacy are allowed in Ukraine. There is also a parent-child relationship between the acceptor and the child.
There is also a family association, since both the genetic father and the acceptor took care of the child from the beginning.
The legislature wants to avoid surrogacy. "When assessing the adoption request, it is only a question of the child's well-being and the prognosis of the development of a parent-child relationship," decided the OLG. If the adoption is nevertheless refused, there is an interference with the rights of the child.
The adoption did not have to be necessary either. It is sufficient that this serves the child's best interests. This is the case if the adoption changes the living conditions of the child so "that a noticeably better development of his personality can be expected". There is no reason why the child was born to a surrogate mother. Here, the child is given a stable and reliable home, so that nothing stands in the way of adoption.
On December 10, 2014, the Federal Court of Justice (BGH) ruled that German authorities must recognize the parenthood of a homosexual couple for a child born to a surrogate mother if a foreign court has already determined so (Az .: XII ZB 463/13; JurAgentur - Notification dated December 19, 2014). Since one of the gay life partners is genetically related to the child, the decision "does not deviate from the German legal situation to such an extent that its recognition would be intolerable," said the BGH at the time. fle / mwo