On 12 November 2024, the European Court of Human Rights (ECtHR) decided the case of R.F. and Others v. Germany (no. 46808/16). The case concerned a rainbow family consisting of the first applicant as the genetic mother, the second applicant as her registered partner and birth mother, and the applicant as their joint child. They had complained about the fact that German law and authorities automatically recognize only the birth mother as legal parent but recognize the parenthood of the genetic mother after having legally adopted her child. In the ECtHR’s opinion, this did not violate the applicants’ right to respect for private and family life taken alone or in conjunction with the prohibition of discrimination as protected by the European Convention on Human Rights (ECHR). This blogpost suggests that the ECtHR has missed the opportunity to strengthen the rights of rainbow families.
Facts of the Case
Two women in a registered partnership fulfilled their wish to have children by way of in vitro fertilization using one of the eggs of the first applicant and sperm from an anonymous donor. The embryo was transferred to the uterus of the second applicant, in a Belgian clinic because egg donation and surrogacy cannot legally be performed in Germany. The second applicant became pregnant and gave birth to their child (the applicant) in Germany where the family lives. From a biological point of view, the child is the first applicant’s child as she is the genetic mother. However, according to German law, a “mother” is exclusively the person who gave birth to the child (Article 1591 of the Civil Code). Therefore, initially, the child had only one legal parent – his birth mother – who was registered on the birth certificate. Civil-status proceedings to have the genetic mother added to the certificate were not successful. Therefore, the genetic mother had to adopt her child under applicable adoption laws, which took around 14 months. According to German law (Article 1592 No. 1 of the Civil Code), the legal father of the child is the man who is married to the child’s (birth) mother at the time of birth. It is irrelevant whether he is fertile, or if a sperm donor was used. German Courts found this article to be not applicable to the non-child-bearing genetic mother by way of analogy.
ECtHR’s Decision
According to the ECtHR, the non-automatic recognition of the genetic mother-child relationship violated neither the right to respect for their private and family life (Article 8 of the ECHR) alone nor in combination with the prohibition of discrimination (Article 14 of the ECHR).
The Court began by reiterating that two women living with a child amount to “family life” (para. 40). It identified the case as raising issues of the State’s positive obligations to effectively guarantee respect for private and family life (para. 58). It admitted, the relationship between the genetic mother and the child concerned an essential aspect of the child’s identity (para. 63). However, the ECtHR observed a lack of consensus among the Council of Europe member states by referring to ILGA-Europe annual index (“Rainbow Map”) to show that by 2024, eleven European states have provided for automatic recognition of co-parenthood (para. 64). Because of this lack of consensus on a topic that “raise[s] delicate ethical questions”, a wide margin of appreciation was applied (para. 65). Consequently, regarding the right to respect for family life, the ECtHR did not find a violation for any of the applicants because “the automatic non-recognition of parent-child relationship between [the child and the genetic mother] did not, in practice, significantly affect the applicants’ enjoyment of family life.” (para. 71).
Regarding the right to respect for private life, the ECtHR decided that, because the birth mother was immediately recognized as legal mother, there was no interference with her right (para. 76). Concerning the genetic mother, the ECtHR considered the foreseeability of the refusal to be automatically recognized, the wide margin of appreciation and the absence of practical impediments to family life on a day-to-day basis. It concluded that the genetic mother’s right was not violated (para. 78). Regarding the child, the Court took into account that the biological relationship between the genetic mother and the child could only be established by circumventing the German legislator’s decision to prohibit surrogacy on its territory by having it performed abroad (paras. 80, 83). The ECtHR accepted that the reasons for Germany’s prohibition on surrogacy and its approach to regulating recognition of maternity (namely, providing the child immediately with a legal mother and avoiding dissociated maternity) were not relevant to the case at hand. However, to promote legal certainty, the ECtHR held that a State may enact a rule that does not provide for balancing of competing interests in each case, but which enacts a rule of an absolute or general nature (paras. 84-90). The Court noted that the possibility of legally adopting the child and thereby allowing him to legally have two mothers, sufficed for Germany’s decision to be within the margin of appreciation (paras. 91-98). Consequently, it did not find a violation of the child’s respect for private life. With only a short explanation referring to findings earlier in this judgment, the ECtHR found the complaint regarding the prohibition of discrimination, because of an alleged unequal treatment between same-sex and different-sex couples, manifestly ill-founded.
A Human Rights Critique and Re-Evaluation of the Case
Article 8 ECHR states that everyone has the right to respect for his private and family life. This section presents arguments in favor of a different human rights assessment of the case than the ECtHR’s judgment. It serves to give some reasons why the obligation to legally adopt one’s own genetic child in this case could be seen as infringing and even violating on the right to respect for private and family life taken alone and in conjunction with the prohibition of discrimination.
For the process of adoption under German law, many private details must be revealed, such as health status, proof of income and the criminal record of the person seeking to adopt. Moreover, the youth welfare office inspects the family’s home and asks about the relationship between the mothers, their wish to have children and their respective family histories. In situations discussed here, the mothers jointly decided to have a child and usually did everything together from planning the pregnancy to raising the child. Thus, the process demanded by seeking to legally adopt one’s own genetic child, are intrusive.
However, worse than these considerations regarding the parents’ private life are arguments in favor of violating the right to respect family life taken alone and in conjunction with the prohibition of discrimination for all family members. This is irrespective of the Court’s finding that in the case at hand, there were no problems on a day-to-day basis. All three persons concerned – the birth mother, her partner (in this case simultaneously the genetic mother) and their child potentially face severe disadvantages from the fact that law does not automatically recognize them as a family. First, as the child was conceived with sperm from an anonymous donor, the child has – until the granting of adoption – only one legal parent and therefore only one person who is required to take care of it and from whom it can inherit. In case the birth mother dies before the completion of adoption by the genetic mother, it is uncertain that child custody would be given to the child’s other mother. This is a risk and a legal disadvantage for the child and the partner, who will usually already have established a strong family bond. Moreover, before adoption, the partner is at risk if the birth mother should decide to leave her because in that case, the partner would have no (or at minimum very little) rights regarding the child. Finally, if the partner should decide to leave her before adoption, she cannot be sued for alimony. Usually, the adoption takes around six until 18 months – a time full of legal insecurities for all parties involved.
These insecurities could, at worst, turn into an immediate loss of the factually established family from one second to the other. Consequently, this insecurity could be used in favor of arguing a violation of the right to respect family life. Moreover, the risks discussed are relevant under anti-discrimination law because they only apply to families consisting of two mothers: Article 14 ECHR prohibits discrimination based on grounds such as sex or other status – the inclusion of sexual orientation is well-accepted. Considering the child will most likely live in the rainbow family even without the second mother’s legal recognition it seems hard to justify the different treatment allowing for many insecurities and risks for the family. All these considerations – which the ECtHR did not discuss – are relevant for situations in which a child is born into the marriage of two women irrespective of surrogacy. However, if the child is the genetic child of the one seeking adoption, the requirement to adopt seems even more unjustified.
Concluding Remarks
With the introduction of “marriage equality” in 2017, most legal differences between same-sex and different-sex couples disappeared. However, differences in the law of descent remain. In spite of various plans to reform this legal situation (inter alia Coalition Agreement (2021), Key Issues Paper (2024), Discussion draft of the Federal Ministry of Justice (2024)), this still has not happened. In addition to reform plans, cases are pending before the Federal Constitutional Court, which is called upon to decide on the constitutionality of the requirement to adopt in cases in which a child is born into the marriage of two women.
Considering that the ECtHR often acts as a motor for development in the Contracting States, it is unfortunate that it did not find a human rights violation in this case. In my view, a different reasoning would have been justified. It is important to remember that a similar legal situation arises if a married lesbian couple gets pregnant in the territory of Germany without having used the method of surrogacy. Such a case would be a new opportunity for the ECtHR.
