Rich-Vaughn-Blog-Germany-Surrogacy-Ruling

Children Born Abroad via Surrogacy Entitled to Legal Parents, German Court Rules

In a landmark ruling released Dec. 19, Germany’s highest court essentially has paved the way for German intended parents via surrogacy to have their children recognized. Here is the best summary I have seen of the particulars of the ruling.

In summary: The decision of the highest court in Germany (Bundesgerichtshof) is a milestone. Mainly it says that both intended parents—also the non-genetic parent—can be recognised as legal parents of the child in Germany. Until now Germany had a very restrictive policy about surrogacy. In some cases even the genetic parent was not recognised as legal parent. The decision marks an important and positive shift.

Here is a short breakdown of the ruling:

1. Applicant-appellant in this case was a same-sex couple and their child born by a surrogate in California. ‎The Superior Court in Placer County had issued a decision holding that appellants were the parents of the child. They petitioned the authorities in Berlin to issue a birth certificate for the child listing appellants as the parents. The officer at the birth register denied that request because the California surrogate was the child's mother for all purposes under German law.

2. Appellants sought judicial review of this decision, but the Berlin courts upheld‎ the officer's refusal to register appellants as parents. In its decision the Berlin appellate court held that a foreign court order recognizing a surrogacy agreement was null and void in Germany as it was against public policy (ordre public). Accordingly, German law applied, and under the Civil Code only the woman giving birth may be registered as the child's mother.

3. On further appeal, the Federal Supreme Court vacated the Berlin court's decision and issued a mandate that appellants be registered as legal parents.

4. The Federal Court held that the decision by the California court commands comity, and German courts may not, as a rule, second-guess a foreign court's decision (prohibition against a so-called revision au fond).

5. The presumption of validity under the comity principle may only be overcome if a recognition of the foreign decision led to a result that was entirely irreconcilable with basic principles of German law, especially the bill of rights or basic human rights.

6. Even though Germany prohibits surrogacy, the child born to a surrogate is entitled to have legal parents. The court observed that the child could not influence the circumstances of its birth, and a surrogacy background could therefore not be grounds to deny it its legal parents.

7. If the intended parents could not be recognized as legal parents in Germany, the child's human rights would be infringed. It would have a mother (the surrogate) who is not recognized as the mother in her jurisdiction and who is not prepared to take responsibility for the child.

8. Adoption was not a viable alternative.

The hope here is that this ruling will help influence public opinion and lead to policy change that will make surrogacy a more accessible option for Germans.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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MOLLY O'BRIEN
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Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.