When two lovers are expecting a child, joy is the strongest feeling most feel. All parents-to-be share this – regardless of whether they are married or not, whether they are a straight couple or two mothers. The state has therefore wisely given every child the right to two legal parents. It is undoubtedly in the best interests of the child if two parents are obliged to take on any and all care for a child. Modern family policy must meet this requirement. Unfortunately, we haven’t arrived in Germany yet.
If a child is born into a marriage or a couple relationship between two women, it initially only has one legal parent. In everyday life, this brings with it a number of problems. For example, formally only the person with custody may pick up the child from school or receive information from medical staff in the event of illness.
If the biological mother dies during childbirth, there would be no legal relationship whatsoever between the child and the mother’s partner, who also feels like a parent. Why is this at the expense of the child?
The introduction of “Marriage for All” in 2017 was a milestone, but it did not abolish all discriminatory regulations. There was a lack of equality for the children in rainbow families, which consist in the great majority of two mothers with children.
The coalition at the time did not follow suit when it came to family law and rejected a green legislative initiative to change the law of descent. But the real life of rainbow families goes on. The “Nodoption” initiative draws attention to this, among other things. In the meantime, some lawsuits from rainbow families are before the Federal Constitutional Court, demanding the right of their children to have two parents from birth.
However, clever legal policy must not wait until it is forced to modernize by the highest German court (as was too often the case in the past), but must become active itself. As a traffic light coalition, we have agreed to adapt family law to the realities of families in all their diversity.
According to § 1592 BGB, a man can become the second legal parent in three ways: automatically through marriage to the mother, through an acknowledgment of paternity or through a determination of paternity. In the first two options, it is completely irrelevant for the state who the actual biological father is. For the state, the protection of the child with two parents is particularly important.
In the case of a couple with a second mother or a person with the gender entry diverse, this protection does not yet apply. Only through the lengthy and patronizing process of stepchild adoption can custody of a common child be won. The couples have to provide information about their finances, health and even their sexual contacts.
This paternalism stirs up fear and insecurity in families and de facto puts the child in a worse position because he is denied the second, protective parent for a long time.
In order to remedy this, the simple solution in a first step is: The wording in § 1592 is changed so that the paragraph covers all genders recognized by German law. The rights of biological fathers would still correspond to the current legal situation in all constellations. A parenthood agreement before conception should bring legal certainty for everyone involved.
In order to legally reflect the entire diversity of families, multiple parenthood constellations and communities of responsibility as well as non-discriminatory regulations for transgender parents are the next step on the coalition’s agenda.
The progressive coalition, which the SPD, Greens and FDP describe themselves as in the coalition agreement, aims to quickly end discrimination in the right of descent for all queer families without exception. It is high time – above all in the interest of the children.
Ulle Schauws (Member of the Bundestag Grüne) is head of the AG Family, Seniors, Women, Youth and Queer. Helge Limburg (Member of the Bundestag Greens) is legal policy spokesman for his parliamentary group.