On December 19th, 2014, the highest court in Germany issued a landmark ruling that recognizes German intended parents as the legal parents of children born through surrogacy. The case involved a same-sex couple whose child was born through a surrogate in California. A California court issued a decision that the couple was the legal parents of the child. Upon their return to Germany, the couple petitioned the Berlin courts for a birth certificate listing them as the child’s parents. However, this request was denied because under German law, the California surrogate was considered the child’s mother. The couple appealed the decision, and the Berlin appellate court upheld the refusal to recognize the couple as the child’s parents. The court reasoned that the California court order was null and void in Germany, where surrogacy agreements are against public policy. The appellate court held that German law superseded; therefore only the woman who gave birth could be the child’s legal mother.
The couple further appealed the decision in the Federal Supreme Court, which reversed the previous courts’ rulings. The court ordered that the couple be registered as the child’s legal parents, reasoning that the California court order requires the presumption of validity under the comity principle and that German courts may not question a foreign court’s ruling. The court explained that comity can only be surmounted if the foreign ruling is incompatible with the basic principles of German law. Although German law prohibits surrogacy, the court established that a child born through surrogacy did not control the circumstances of its birth and is entitled to have legal parents. The court also reasoned that denying the couple legal parentage would be incompatible with basic human rights, as the child’s mother is not recognized as such in her jurisdiction and is not prepared to take responsibility for the child.