Two married women can not automatically become parents together. For this, the partner still has to adopt the child born by her wife. This is clear from the Karlsruhe Federal Court of Justice (BGH). According to the supreme family court judges, common motherhood can only be achieved through a reform of the right of descent.
In October 2017, a couple from Saxony had their registered civil partnership converted to marriage. A few weeks later, the jointly planned child was born. It was sired with donor sperm through artificial insemination.
Contrary to the wishes of the couple, the registry office did not register both women as mothers, but only the one who gave birth to the child. The courts were divided on the issue, the registry office brought the case with a legal appeal in the highest instance.
Purely biological only a mother
The father of a child is, according to the Civil Code, usually the man who is married to the mother at the time of birth. According to the BGH judges, this rule can not be applied to the marriage of two women.
While the paternity by marriage regularly depict the actual descent, two women in purely biological only one could be the mother. This does not violate the principle of equal treatment in the Basic Law.
On behalf of the government, experts had submitted proposals for a reform of the right of descent in mid-2017. Among other things, these provide that a "co-mother" should also be considered as the second parent. The BGH assumes that the legislature has deliberately refrained from a corresponding reform.