Currently in Germany there is no legal regulation on parenthood for a married female couple. It means that only the biological mother is legally recognised as a parent and her partner has to go through a formal adoption process to become the child’s second parent, even if they are married.
It is a process that can take months or even years. But that looks set to change.
“If a child is born into a marriage between a man and a woman, the man – regardless of biological paternity – is legally the father,” Federal Minister Bushman (FDP) told Germany’s Rheinische Post and the General-Anzeiger in an interview.
“The question is: why should this be different in a marriage between two women?”
Buschmann said the decisive factor should be “that two people take care of the child, provide love and security, and also legally stand up for the child as a community”.
He said it should therefore become the norm that in a marriage, the two mothers “are recognised as parents in the sense of joint motherhood”.
“However, we must not lose sight of the rights of the biological father,” added Buschmann.
Buschmann’s demand is in line with what the traffic light coalition, made up of the Social Democrats (SPD), Greens and FDP, set out as a goal in their coalition agreement at the end of last year.
The agreement stated: “If a child is born into the marriage of two women, both are automatically legal mothers of the child, unless otherwise agreed.”
A reform of the law of parental rights has been in the works for some time in Germany.
Having to go through an adoption procedure “is rightly perceived as discriminatory by lesbian couples”, Buschmann’s predecessor Christine Lambrecht (SPD) had said in summer 2020, adding that “a mother should not have to adopt her child”.
But so far, there has been no real movement on legal regulation in parenthood for a married female couple.
The Constitutional Court in Karlsruhe is looking for clarity on this issue.
Last year, the Higher Regional Court (OLG) in Celle referred a case on the recognition of two mothers to this court.
Judges in Lower Saxony consider it unconstitutional that there is no provision for a married female couple in the paragraphs on parenthood in Germany’s Civil Code.
This issue remains unresolved even though same-sex marriages were declared legal in Germany in October 2017.
Critics said there were errors in the implementation of the new law that meant parental rights were not subsequently changed and the civil registry of births wasn’t established for same-sex partners across the country.