International Conference, Kyiv 29 Sep 2017

1. International adoption and
surrogacy from the perspective of
German law and the relationship
with Ukraine
Lawyer Rolf Behrentin, Cologne

2. To my person
• Lawyer in Cologne
• Speciality international adoption law
• Experience in science and practice for many
years
• Editor and author of a handbook over
adoption law in Germany
• New focus in recent years: Surrogacy

3. Surrogacy in German law
• German legislator rejects all forms of
surrogacy
• According to his view surrogacy violates the
human and fundamental rights of children and
mothers
• But no legal prohibition of surrogacy itself
• Only medical performance and mediation of a
surrogate mother are criminal cases
 Interested couples have to execute the
process abroad

4. Handling of foreign surrogacy
according to German law
Parenthood is
detected
by authority or court
(e.g. USA)
Two types of countries
Parenthood is not
detected
by authority or court
(e.g. Ukraine)

5. Parenthood is detected
by authority or court
Way to legal parenthood in
Germany:
Recognition by German court
First judgement in such a case by
Bundesgerichtshof
10.12.2014 - XII ZB 463/13

6. Parenthood is detected
by authority or court
According to this ruling, the requirements for
recognition the parenthood and unfold legal
effects in Germany are:
• The foreign court decision has to be the result
of a proper audit
• At least one of the parents has to be related
genetically to the child
• No signs are evident for a disregard of the
rights of the surrogate mother
• Otherwise the German ordre public could be
violated recognition could not be granted

7. New ruling of Oberlandesgericht Celle
22.05.2017 – 17 W 8/16
• The ruling was in connection to the decision of
the Bundesgerichtshof. But they say, that not only
decisions of courts can be recognised.
• Also decisions by authorities (e.g. civil offices) can
be recognized.
• This is the case in Ukraine. So the ruling is
changing the situation for surrogacy with Ukraine
completely. Until now there was only possibility
of adoption according to German law.
• It remains to be seen whether this view is enforced!

8. Ruling of Oberlandesgericht
Braunschweig 12.04.2017 – 1 UF 83/13
• The ruling went against the decision of the
Bundesgerichtshof.
• They say surrogacy arrangements always
violate the German ordre public and
recognition could not be granted.
• The Bundesgerichtshof will decide soon in this
case.

9. Parenthood in German law
 Mother of a child is the women who gave birth to the
child. Motherhood can only be reached by another
women through adopting the child. So a surrogate
mother is according to German law the legal mother of a
child.
 Father of a child:
• is the person who is married to the mother or
• the person who recognises the fatherhood with
consent of the mother or
• the person who is orderd by court to the fatherhood.

10. Parenthood is not detected
by authority or court
• If, according to the stated principles the
legal paternity of a German citizen is
brought up, the child acquires the German
nationality from him and can easily enter
Germany.
• If, then, the intended mother wishes to
obtain the legal parenthood of the child, a
step-child adoption must be implemented.

11. Step-child adoption
Requirements of German law
Adoption is admissible if it
serves the best interests of the
child and it is to be expected
that a parent-child relationship
will arise between the adoptive
parent and the child.
A person who has taken part
for the purpose of adoption in
a procurement or
transportation of a child that is
unlawful or contrary to public
policy or who has
commissioned a third party
with this or rewarded him for
this should adopt a child only if
this is necessary for the best
interests of the child.
OR
1. 2.

12. First requirements
• Best interest of the child
= The adoption is in the best interest of the
child if the adoption leads to a lasting
improvement of the child's personal
circumstances or the legal position. The
adoption has to require a noticeably better
development of the child's personality.

13. Second requirements
• The Adoption is necessary for the best interest
of the child
= According to prevailing opinion, also in
literature and case law, a adoption is necessary
if the only possibility of a child-friendly
accommodation is the best choice. The German
legislature intended to deprive trafficking of
children with this regulation.

14. First or second requirements
• Some family courts judged adoption cases after the second
requirements and the adoptions failed in that cases.
• Opinions that focus on the second requirements, misunderstand
that surrogacy has a completely different character than trafficking
of children. Just because trafficking of children requires a born
child. It is much more serious that, according to juridical
jurisprudence, general preventive considerations must not an
obstacle to the best interest of the child. The children must not be
burdened with the alleged misconduct of their descendants.
• Oberlandesgericht Düsseldorf made clear in a decision (17.3.2017 –
II-1 UF 10/16 ), that the first requirements have to be applied.
• The conflict of opinions is not over. The further development
remains to be seen.

15. Thank you very
much for your
attention!