Lost Overseas: The Fight for Your Child

by Rolf Behrentin of Behrentin Rechtsanwälte

For most people, there comes a time in their lives when they think about having children. For those who have made this decision, if it turns out that they cannot have children naturally, this can be incredibly hard to accept. Once this difficult situation has been accepted, the question of alternatives arises. At this point, couples will be confronted with topics such as adoption or surrogacy. However, these routes to parenthood can be troublesome and emotionally challenging. This is often the case where proceedings take place abroad, and the law in the child’s country of birth does not correspond to the legal requirements in the country of origin of the intended parents.

Adoption in particular is an area that can hold many uncertainties on the road to legal parenthood of an adopted child. One parent may unlawfully refuse to agree to the adoption, or a responsible authority might give a negative prognosis that is unjustified. Whenever such legal difficulties arise, affected couples will almost inevitably seek the counsel of a specialised attorney. In the USA there is an abundance of specialised experts among lawyers and law firms. In Germany, on the other hand, there are a few renowned family law experts, but only one law firm specializes in adoption law and also covers further aspects of international family and reproductive law. Aside from counselling clients, this law firm is active in academic research, provides international assistance to clients, other law firms, public authorities and Courts, and prepares expert opinions. We spoke to the owner, Rechtsanwalt Rolf Behrentin, about adoption, reproductive law, his work and interesting cases in his day-to-day practice.

 

You have specialized in adoption law since 2002 and also in reproductive law since 2010. Please give us an overview on the legal situation and developments in Germany.

 

Adoption Law

Under German law, the provisions governing adoption comprise two large areas: the adoption of minors and the adoption of adults. The paramount principle governing the adoption of minors in Germany is that the adoption must be in the child’s best interests, which equates to international standards. Therefore, the process of adopting minors seeks to find suitable parents for a child, and not to find a suitable child for the parents. The majority of adoptions of minors in Germany concerns stepchildren, i. e. cases where a new partner adopts the child of the other spouse. The numbers in this area have been stable over the years and are very likely to grow in the future, due to constantly changing circumstances in family life.

In the other area of so-called “non-family adoptions” (Fremdadoptionen) there are more applicants in Germany than children available for adoption. As a result of this, the chances of applicants actually adopting a child will often be slim. It is also possible to adopt children from abroad. Often, these children are highly traumatized, or they are children with special needs, and to adopt them would be challenging. This discourages many applicants. As a result of these circumstances and the developments in reproductive medicine, in particular the developments in surrogacy in other countries, the number of successful adoptions from abroad has been constantly decreasing in Germany. As an attorney I have had to react and adapt to these developments, which is why I have been expanding my field of practice into reproductive law for some years now.

 

Reproductive law

In recent years, surrogacy has been at the heart of discussions about reproductive law in Germany. As opposed to the United States, German law prohibits both the medical procedure and facilitating a surrogate mother. Therefore, affected couples must go abroad to arrange a surrogacy, e. g. to California or to the Ukraine. German legislators continue to oppose surrogacy. From a German law perspective, the legal mother of a child is the woman who has given birth to the child. The legal father is either the mother’s husband, or the man who has acknowledged that he is the father, or the man who has been judicially declared to be the father. This leads to the frustrating situation that, while in the state of birth of the child the intended parents are viewed as the legal parents, under German law, there is initially no legal relationship between the intended parents and the child. If there is a parentage judgment/order (Abstammungsentscheidung), as in many States in the US, the legal parenthood of the intended parents can be determined with binding effect relatively simply through judicial recognition. In countries that do not provide for such a judgment, such as the Ukraine, it is more difficult. If the surrogate mother there is not married, the intended father can become the father by acknowledging his fatherhood, and the child will thus become a German national. However, if the surrogate mother is married, the intended father can only become the legal father – resulting in the status of German national for the child – by judicially contesting the husband’s fatherhood and having his own fatherhood determined. In these cases, the child will not be permitted entry into Germany prior to the close of these proceedings, which puts the affected couple in a difficult situation. The intended mother can then become the legal mother only by adopting the child by way of a stepchild adoption. These cases always involve difficult questions of international law. In the USA, this seems hardly conceivable, but in Germany it is the bitter reality. In these cases, I benefit from my experience as an attorney specialized in adoption law.

 

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“Our adoptions situation was extremely complex and we switched to Rolf after losing in the first instance. Rolf patiently worked through the situation and with his strong relationships, outstanding legal mind drove the situation to a wonderful resolution”

 

1. Lohr, Apollo Global Management LLC, London, International Adoption USA

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Are there differences between the work of an adoption attorney in Germany and in the USA?

Yes, there is a considerable difference. In the United States, attorneys are permitted to arrange adoptions, whereas in Germany, this is not only impossible, but outright prohibited. In Germany, the matching procedure and the establishing of contact between the intended parents and the adoption agency responsible for the child, on both national and international level, may only be undertaken by public authorities or institutions accredited by such authorities. I am a Member of the Board of an accredited adoption agency operating internationally. However, this is only a side job, and I keep my work as an attorney strictly separate from these activities. Nevertheless, they provide me with important insights into the practice of matching procedures and the extrajudicial aspects of adoption and with valuable experience for my internationally active law firm.

 

Please share some of these experiences with us.

I also provide legal counsel to the association of accredited adoption agencies in Germany. This keeps me up to date, and I am well aware of the problems and worries of the accredited adoption agencies in Germany. Both activities have provided me with comprehensive experience in dealing with German and foreign public authorities. Dealing with German public authorities is not particularly exciting. In most of these cases, the public authority and the accredited institution have a different view of certain legal aspects, and the task then is to negotiate or achieve clarification in Court proceedings.

Dealing with public authorities abroad is much more exciting. It requires dealing with different cultural environments and different approaches to work, which greatly enriches my role. To win countries for adoption agencies, I have travelled a lot in Africa and also on other continents. I have had to negotiate agreements, conditions and procedures with Ministries and attorneys in those countries. I have also seen dramatic developments during adoptions, cases, in which the genetic parents of the child showed up and I then had to reverse the adoption. I have gained experience in over 50 countries worldwide.

 

Are there problems related to international adoption that we in the USA are not familiar with?

There are a few. Some German embassies abroad can be quite stubborn when it comes to problems in the country of origin of a child. Theoretically, German embassies and consulates would have to verify for themselves whether the adoption can be recognised under German law and whether the child has acquired German nationality through adoption and may therefore enter the country. Nevertheless, many German diplomatic missions instead require formal recognition proceedings before the German Courts. These proceedings will take at least six months. As a result of this, the adoptive parents, or one of them, must live with the child in the country of origin until the proceedings are closed, and the child may not enter Germany beforehand. I am involved with such cases quite often. To my knowledge, the US authorities are much more accommodating as these problems do not seem to occur for US nationals. On the whole, the recognition of an adoption from abroad is considerably less difficult in the United States than in Germany. In one of the worst cases I have had to deal with, it took four years to get the adopted child and the parents into Germany, because recognition was refused. We were forced to resort to a so-called “post adoption” (Nachadoption) to get the child here. Under these circumstances, it often proves difficult to get assistance from foreign public authorities, because they consider the adoption proceedings to be closed. On one occasion, I had to travel abroad and stay there for weeks, speaking daily with the central authority or to Courts or Ministries to make it happen. I spent an entire trip to India at CARA, and have experienced the same issues in some African and South American countries. The situation can be equally difficult if the country of origin suspends the international adoption, and the applicants are in the middle of the preparatory phase at that point. German authorities will not be of any assistance then, and so I have to pack my suitcases again. The US authorities provide much more support to their citizens in such cases.

 

A large area of your activities has not yet been mentioned: you are also involved in the adoption of adults. Please tell us more about it.

That does form a large part of my work. Unlike the other activities I engage in, the reason for the adoption of an adult is not usually the unfulfilled wish to have children; generally, the reasons are quite different. Under German law, the adoption of an adult will lead to positive tax benefits in succession cases. This means that succession tax will be considerably lower if the beneficiary was adopted prior to the testator’s death. If this was the only reason for the adoption, that would obviously be a problem, because the adoption of adults was not intended to be a tax saving device. Adoption of adults is also found in cases dealing with corporate succession, because it also brings tax advantages in that area. Another motive can be to facilitate the inheritance of family names or aristocratic titles. I have already been involved with some such cases in the European aristocracy. Of course, the German Courts are aware of the situation and will therefore take a close look at the reasons given for the adoption. Then my role is to bring the family-related adoption reasons more into the focus of both the Court and the client.

 

 

 

 

“They really do exist – books that we’ve been missing. […  An] excellent handbook on adoption law …”

Dr. Claus-Henrik Horn, Fachanwalt für Erbrecht, Düsseldorf, in: ErbR 12/2017, to 1th. edition 2017

 

FIRM PROFILE

Behrentin Rechtsanwälte offers you comprehensive advice as well as judicial and extrajudicial representation in all matters of international adoption and reproductive law at the highest level. For more than a decade, the law firm Behrentin Rechtsanwälte has specialised in national and international adoption law with experience in more than 50 countries. A scientific approach and extensive practical experience unite in this law firm. Through many years of academic activity, longer periods spent abroad and the practical experience of the law firm owner, we are prepared for any kind of complex issues. A team of academic staff supports Behrentin Rechtsanwälte to ensure high scientific standards are maintained for the benefit of clients.

 

Behrentin Rechtsanwälte also prepares expert opinions on all questions of adoption and reproductive law. We also provide support and advice for other national and international law firms.

 

ABOUT ROLF BEHRENTIN

As an independent lawyer, Rolf Behrentin has specialised for many years in both German and international adoption law, with experience in more than 50 countries.

Activities:

• Editor and co-author of „Handbuch Adoptionsrecht” (Adoption Law Compendium). (Publisher CH Beck oHG 2017)
• Author of Art. 22 and 23 EGBGB (International Adoption Law) of the juris

PraxisKommentar BGB in the 7th edition.

 

• Co-Author of the §§ 1741 ff. BGB (Adoption Law) of the NOMOS BGB Law forms in the 4th edition.

 

• Author of several articles in Law Magazines
• Speaker at national and international judicial conferences and advanced training for family judges.

 

• Official expert in court proceedings for international private law
• Advisor for candidate seminars in the adoption process.

 

• Member of the Board of the largest German accredited intercountry adoption agency (HELP a child e.V.), the agency is accredited for Haiti, Dominican Republic, Kenya and Burkina Faso
• Advisory work for the Federal Association of accredited intercountry adoption agencies (BAFT).
• Research associate of Prof. Dr. Petra Pohlmann at Heinrich-Heine-University Dusseldorf (now Munster) for six years
• Gives regularly interviews for TV, newspapers and radio on adoption and surrogacy

Qualifications: Studied at the University of Cologne. Lawyer training in Cologne and Bangalore (India). Admitted as a lawyer since 2002. Successfully completed specialist family law and inheritance law courses.

AREAS OF EXPERTISE

• Adoption as a child (adoption of minors)
• Recognition of international adoptions
• Surrogacy
• Adult adoption (full-age adoption)
• Adoption into civil partnerships (especially stepchild and successive adoption)
• Conversion of international adoptions
• Domestic adoption with international

Aspects

• Replacement of consent to an adoption
• Suspension of adoption
• Assistance in all extrajudicial aspects of adoption
• Intercountry adoption
• International private law
• Reproductive law

 

CONTACT BEHRENTIN RECHTSANWÄLTE

Rolf Behrentin, Im MediaPark 8, 50670 Cologne

Tel: +49 (0) 221/788 20 400

Fax: +49 (0) 221/788 20 401

Email: rb@behrentin.de

Web: www.behrentin.de