Stepchild adoption possible despite surrogacy
Surrogacy is prohibited in Germany. Nevertheless, the Higher Regional Court of Frankfurt am Main allowed a German couple to adopt a stepchild born abroad to a surrogate mother.
The Higher Regional Court (OLG) of Frankfurt am Main has ruled that the stepchild adoption of a child born abroad to a surrogate mother is possible despite the ban on surrogacy in Germany (decision of December 14, 2023, case number 2 UF 33/23). With this ruling, a German couple can proceed with the corresponding stepchild adoption.
The background to the case was the German couple's previously unfulfilled desire to have children. They had contacted a Ukrainian fertility clinic to arrange a surrogacy. With the help of an egg donation, a pregnancy was subsequently induced in a Ukrainian woman.
At the beginning of 2020, the husband had already acknowledged paternity of the child born to the surrogate mother in Ukraine. In the summer of 2020, the German couple took in the child, and now the wife wanted to adopt the child to legally secure her position.
Surrogate mother never wanted to take in child
As part of the lengthy adoption proceedings, the Higher Regional Court (OLG) had to examine the implications of the ban on surrogacy in Germany. Initially, the family court had rejected the adoption application. The couple appealed this decision and were now successful before the Higher Regional Court of Frankfurt am Main.
In its justification, the Higher Regional Court stated that the moral justification required for adoption can also be present in the case of a stepchild adoption. The decisive factor is, in particular, whether it is necessary for the child's best interests that the child also establish a legal parent-child relationship with the stepmother. According to the Higher Regional Court, this requires that the child is raised without complaint in the household of both intended parents and knows them as its social parents. The family court had previously denied this.
In the present surrogacy case, the Higher Regional Court particularly considered the fact that the surrogate mother never wanted to take the child into her home and, after the birth, gave the consent required by German law for the adoption. Consequently, the child was dependent on the intended parents; she had no one else.
Stepmother is interested in being legally protected
According to the Higher Regional Court, the stepmother must also be legally recognized as the mother so that the child's placement can be determined according to the child's best interests, for example, in the event of separation from the father or after his death—as is common with two legal parents. In the event of a separation, the decisive factor for legal parents is who has the closer bond with the child. In the specific case of the plaintiff spouses, the child would otherwise automatically have to remain with the sole legal parent, namely the father. Legal protection for such a case is in the stepmother's best interest.
From the Higher Regional Court's perspective, however, it is not decisive for the legal assessment whether the stepmother is genetically related to the child through egg donation. From the child's perspective, the sole determining factor for the bond with the stepmother is the social role she has held for years as a mother.
It is also irrelevant whether the legal father is also the child's genetic father, because paternity law cannot distinguish between "merely" legal paternity and paternity solidified by a biological bond. Therefore, it is not necessary to examine separately whether the paternity legally recognized abroad was based on sperm donation from the father.