Rainbow family: homosexual couples who want children
Marriage for homosexual couples has been legal in Germany since October 2017. This also makes the desire for a so-called rainbow family easier – for example, the adoption of a child by a same-sex couple is now possible. You can find out more about your rights here.
Same-sex couples have been allowed to marry since October 1, 2017. This means that they have the same rights in terms of having children as heterosexual married couples. The desire to start a rainbow family – as families are called in which children have same-sex parents – is now within reach for many couples.
Rainbow family through adoption
Before the so-called “marriage for all” , homosexual couples were only able to adopt stepchildren, i.e. adopting the child of their partner. It does not matter whether the child comes from a previous marriage, is illegitimate or adopted. The child acquires the legal status of a joint legitimate child of the spouses.
However, since “Marriage for All”, same-sex married couples have also been allowed to adopt someone else’s child. The procedure in adoption matters, according to the Law on Procedure in Family Matters and in Matters of Voluntary Jurisdiction, is the same as in the case of adoption by a heterosexual couple.
You can read more about adoption here.
Rainbow family through sperm donation
Assuming a married, lesbian couple would like to become pregnant through sperm donation: is the non-carrying woman then automatically recognized as the mother? Unfortunately not, here too this is only possible via stepchild adoption.
Because: According to the law in force in Germany, the mother of a child is the woman who gave birth to it. This means that even if a woman carries a fertilized egg that does not come from her but from another woman, she is legally the mother of the child. Accordingly, a woman who is married to the mother does not by operation of law become a co-mother of a child born during the marriage. Co-motherhood is also only possible for a married lesbian couple by way of stepchild adoption.
Incidentally, the sperm donor is not considered the father of the child. However, he can apply for this role in court, provided that the child was not born into an existing marriage. If he is officially recognized as the father, he must pay maintenance to the child. Corresponding agreements with the intended parents or the doctor can exempt him from this.
Only in the case of so-called consented heterological insemination (the sperm donor waives legal paternity prior to conception by agreement with the intended parents) is the sperm donor denied the right to challenge paternity.
Rainbow family through surrogacy?
According to Section 1 (1) of the Embryo Protection Act (ESchG), surrogacy is prohibited in Germany. The agreement between the intended parents and a surrogate mother on consent to the adoption, including the agreement on remuneration, violates “moral decency” and is therefore void under Section 138 (1) of the Federal Code.