Does the German Judiciary Truly Consider a Child’s Best Interest?

With surrogacy being illegal in Germany, Dr Oldenburger reveals the issues in the judiciary system and the challenges families may face on their return home with their newborn if parents opt for surrogacy abroad.

Below we get in touch with Dr Oldenburger, a certified family law and medical law attorney based in Hannover.

One topic that has become increasingly important in recent years is the different design of the legal systems in relation to surrogacy: German law has expressly decided against the legalization of surrogacy. Nevertheless, it is in the opinion of the Federal Court of Justice (BGH) to register, not the child giving birth surrogate as the mother, but the woman requesting the surrogacy in the civil status register of Germany, as a legal mother. This is surprising because the German legislature has determined in § 1591 BGB that the mother of a child can only be the woman who gave birth to it. The actual genetic origin of egg and sperm cell is not important.

You can travel to Germany with your child and register your parenthood in the civil status register.

However, the German ban on surrogacy can be circumvented. Couples aiming to have a child look for a suitable surrogate abroad who will deliver and give birth to a child for the mother of desire. Contractually, the surrogate mother, who is well-paid for her services, renounces her own parental rights; however, according to the respective state law of the country in which the child is born, the desired parents obtain legal parental status. You can travel to Germany with your child and register your parenthood in the civil status register. It is possible despite prohibition and without giving birth(§ 1591 BGB), to get your own child by means of a foreign surrogate mother.

If a child born of a surrogate mother is not genetically “attached” to the mother of desire, and the permissible surrogate procedure conforms to the so-called public order, then from the point of view of the best interests of the child, the intended mother may become the legal mother, even though she did not give birth.

If there is a dispute between the parents living in Germany over the course of time and this leads to their separation, it must be clarified in terms of the best interests of the child to which parent the child lives with in the future.

For German couples who are planning such a thing, it is therefore important to check the actual legal conditions before concluding a contract on surrogacy and ideally, have arranged the child’s entry to Germany, if it is possible, and subsequently arrange the registration of the Parenthood which can be done in civil registers. The specialised office of Dr Oldenburger has accompanied couples for many years on this and supports them in all legal matters with the aim to get the recognition of their parenting with foreign, legally permissible surrogacy contracts in Germany.

If there is a dispute between the parents living in Germany over the course of time and this leads to their separation, it must be clarified in terms of the best interests of the child to which parent the child lives with in the future. This is the most important aspect of parental care. Even if the parents have different nationalities, corresponding family court proceedings would have to be conducted in Germany. International jurisdiction follows the usual place of residence (see, for example, Article 8 Brussels IIa Regulation). This is also the case for an application for divorce (see Art. 3 (1 lit.) a Brussels IIa Regulation).

The judicial responsibility for the fate of the affected child is enormous.

Such a court decision must respect the wishes and interests of the child. These are often determined by procedural assistants and forwarded to the parties. Wishes are rarely decided against the will of a child. Examining the authenticity of the child’s will, the child’s understanding and intellect, the state of their personal development and the individual living conditions must be considered. This leads to quite wide spaces for interpretation, which are often used by the arguing parents and their lawyers to support their own interests. The law itself is very rudimentary, as the court should decide on the basis of the facts to be determined ex officio. What is in the best interests of the child? This question is asked by § 1671 (1) sentence 2 no. 2 BGB to the judge, referring to facts that are beyond the law (and to be ascertained).

The judicial responsibility for the fate of the affected child is enormous. Unfortunately, this is not matched by sufficient qualifications for the relevant extrajudicial competencies. Neither university education nor the probationary period of judges in Germany include, for example, compulsory modules in childhood sciences, developmental physiology, psychology, social pedagogy, etc.

No judge should have to make a custodial decision without having important (proven) extra-judicial competences.

Thus, the German state does not live up to its outstanding responsibility for children and adolescents. It is therefore essential that all lawyers involved in child-litigation procedures are qualified outside substantive law. No judge should have to make a custodial decision without having important (proven) extra-judicial competences. It contradicts the state’s mandate to provide a legal judge * in child-welfare matters, especially if they are not adequately qualified to do so.

Despite this structural qualification problem, the judiciary has tried to make appropriate decisions in the child’s interests. An important factor is, of course, the use of extra-legal assistance. Procedural assistance including youth welfare offices assist, alongside Experts specialising in child and adolescent psychology and/or psychiatry. But even so, a fundamental problem remains: Family court judges should also critically review and rate expert opinions. Only then can it become an effective decision, one that the judge(s) can really be convinced on the end result (§ 37 FamFG). How this should be done without (at least to some extent) appropriate qualifications, remains open. The result, however, is hypocrisy of the decision made, because it is supposed to appear objective, although it can not really be, to some extent. A dilemma for every family judge. And, with such hypocrisy, there is also a value-irrationality connected with material demands for justice anchored in the legal system. Thus every decision under child-rights law immediately leaves the ground of legal-dogmatic predictability and verifiability. Welcome to the judiciary, welcome to a childlike legal world of chance and arbitrariness.

So why not, following this example, use specially trained judges for all child-related procedures?

Further, there are cases in which a parent wants to move with their child to their home country. If the other parent does not agree, but the other parent implements his or her announcement, a return procedure under the Hague Convention on the Civil Aspects of International Child Abduction (HKÜ) may result. Both kidnappings from and to Germany are included. For such procedures, there are specially trained courts at the seat of the Higher Regional Courts. Legislators have shown that they are capable of installing special responsibilities combined with specially qualified judges. So why not, following this example, use specially trained judges for all child-related procedures?

In the run-up to an intended move abroad – to avoid a return procedure according to the HKÜ – it should be clarified whether the move best suits the interests of the child. This does not differ fundamentally from a move within Germany. Not only future decisions about attending school, medical treatments, official transfers and registrations, etc., questions about parental custody are also put to the test. The problems increase the farther apart the places of residence are after separation, and the more time-consuming and costly the travel involved is. So far, a mandatory dependency of a custody decision on an access regulation, especially when moving abroad, is not provided for by law in Germany. But voices in science demand this. Dr Oldenburger, therefore, always recommends, until there are legal changes relating to such cases, parallel proceedings should occur for the right of custody and access.

The effects of different legal systems can be significant.

If the children have been living with a parent outside of Germany for some time, the court of the new place of residence of the children would be responsible for these questions. In turn, this jurisdiction can be overlaid by the alternative jurisdiction in the context of divorce (Article 12 (1) Brussels IIa Regulation). For in these cases, responsibility for parental responsibility is the responsibility of the court of divorce. The effects of different legal systems can be significant. Because, as is clear from Art. 8 Rome III Regulation, the competent family court will apply the law of its own state.

Dr Oldenburger supports the clients in the case of an intended choice of law, as well as the support and correspondence with a foreign cooperation office, once a procedure has to be conducted outside of Germany. In this context, Dr Oldenburger also provides legal opinion on issues of international jurisdiction and the applicability and application of German family law abroad.

Dr. iur. Marko Oldenburger

Rechtsanwalt

Fachanwalt für Familienrecht

Fachanwalt für Medizinrecht

Karmarschstr. 46 (ggü. Markthalle)

30159 Hannover

Tel.: 0511 – 87459730

Fax: 0511 – 874597303

Email: oldenburger@artvocati.de

Web: www.artvocati.de

About Marko Oldenburger and the Firm

artvocati supports clients with individual and dedicated legal advice and representation. Dr iur Marko Oldenburger, a certified family law and medical law attorney based in Hannover, has successfully advised and assisted clients for many years with his extensive expertise in both national and international legal matters.

The owner of the firm, Dr Oldenburger has been an independent attorney since 1998. His law office was initially located at the seat of the Higher Regional Court in Celle. In 2010, the firm was relocated to the state capital Hannover. Since he was admitted to the bar in 1998 his main focuses have been medical law and entire area of family law and inheritance law. He has particular expertise, accumulated over a period of many years, in the area of doctors’ separations and divorces, at the intersection of medical and family law. For both of these areas, Dr Oldenburger was granted the title of certified attorney due to his extensive theoretical knowledge and practical experience.

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