BGH: A biological mother is also a legal mother
Children should not only have a mother and a father legally, but also legally. Therefore, even after her legal recognition as a man, a transsexual biological mother cannot have her fatherhood entered in the birth register, the Federal Court of Justice decided in a decision published on Monday, September 25, 2017 (file number: XII ZB 660/14). The Karlsruhe judges emphasized that the child had a constitutional right to know about his parentage and thus a right to know who is mother and who is father.
The decisive legal dispute concerned a woman-to-man transsexual from Berlin. As a woman he married a man, but then adopted male first names during the marriage. In April 2011 he was legally recognized as a man, even if he still had female genital organs. The divorce from the husband took place in 2013.
In the course of gender reassignment, the applicant underwent treatment with male hormones. However, he discontinued this in order to fulfill the existing wish to have children and to become fertile again for a certain time.
In fact, the transsexual gave birth to a child shortly after the divorce - not from her ex-husband, but with the "cup method" from a sperm donor. For this child he wanted to be registered as a father in the birth register.
The registry office had doubts whether this was possible. Both the Berlin-Schöneberg district court and the Berlin district court rejected this. According to Kammergicht, a child cannot have two fathers but no mother at the same time, also legally (Az .: 1 W 48/14; JurAgentur announcement of October 30, 2014).
The BGH agreed to this in its decision of September 6, 2017. According to the Transsexuals Act, the gender-dependent rights and obligations were based on the assignment ordered by the court to be based on the new gender. The legal relationship with the children remains unaffected. This applies even if a woman-to-man transsexual is recognized as a man and then gives birth to a child.
If the child is born, it is considered a mother, the BGH decided. The former female first names of the “mother” would then have to be entered in the birth register. The legislature was entitled to stipulate that the descent of a child "is not in contradiction to the biological facts to two legal mothers or fathers".
According to this, motherhood and fatherhood are not interchangeable. Otherwise, this would have far-reaching consequences for the legal system, the XII warned. BGH civil senate. There are different legal implications whether someone is a mother or a father, for example, custody of unmarried parents. Therefore there could only be one mother and only one father.
The child also has a constitutional right to know how his lineage and thus who his mother is. The entries in the birth register were used for clarification.
Finally, the entry of the transsexual parent's original female first names prevents other third parties from finding evidence of transsexuality. The child can later prove its origins without third parties speculating about the parents' transsexuality. fle / mwo