Statutory provisions on paternity challenges brought by biological fathers are incompatible with the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law)

Statutory provisions on paternity challenges brought by biological fathers are incompatible with the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law)

Press Release No. 35/2024 of 09 April 2024

Judgment of 9 April 2024 - 1 BvR 2017/21

In a judgment pronounced today, the First Senate of the Federal Constitutional Court held that the statutory provisions on the right of a biological father to challenge the paternity of the legally recognised father of the child are incompatible with the Basic Law. They do not sufficiently take into account the fundamental right of biological fathers. Biological fathers are parents within the meaning of Art. 6(2) first sentence of the Basic Law (Grundgesetz - GG) and, like legal parents, may assert the fundamental right of parental care.

The legislator must give effect to this fundamental right through legislation. In doing so, the legislator is permitted to grant legal status as a parent - in deviation from the current provisions in the Civil Code - to the biological father as well as the mother and the legally recognised father. However, if the legislator chooses to limit legal parenthood to two parents, then it must provide biological fathers a sufficiently effective legal procedure that allows them to become the legal father of a child in place of the hitherto legally recognised father. The current law does not satisfy this standard because, among other things, it does not permit an existing or prior social and family relationship between the child and their biological father to be taken into consideration; nor does the law permit consideration of a biological father's prior efforts to obtain legal paternity.

The provisions in § 1600(2) and § 1600(3) first sentence of the Civil Code (Bürgerliches Gesetzbuch - BGB) regarding paternity challenges that are declared incompatible with the Basic Law will remain in force until the legislator enacts new provisions, or until 30 June 2025 at the latest.

Facts of the case:

The complainant is the confirmed biological father of a child born in 2020 outside of marriage. The complainant had a relationship with the mother of the child and lived with her in a single household. After the child's mother and the complainant ended their relationship, the complainant continued to have contact with his child. The mother then entered into a relationship with a new partner. After the complainant submitted an application for a declaration of his paternity, the new partner, with the mother's consent, recognised the child as his own and thereby became the legally recognised father of the child.

In the paternity challenge proceedings, the Higher Regional Court (Oberlandesgericht), sitting in the second instance, rejected as unfounded the complainant's application for a declaration that he, and not the legally recognised father, was the father of the child. The complainant's paternity challenge failed due to the social and family relationship that had developed in the meantime between the child and the mother's new partner, the legal father of the child. In his constitutional complaint, the complainant claims a violation of his parental right guaranteed by Art. 6(2) first sentence of the Basic Law. He contends that § 1600(2) and (3) of the Civil Code in the manner applied by the Higher Regional Court make it impossible for him to obtain legal paternity of the child.

Key considerations of the Senate:

§ 1600(2) first alternative and § 1600(3) first sentence of the Civil Code are incompatible with Art. 6(2) first sentence of the Basic Law. Because the challenged order of the Higher Regional Court is based on the application of these provisions, the order violates the complainant's fundmental right of parental care.

Art. 6(2) first sentence of the Basic Law protects the right of parents to care for and raise their children, which must be respected by the state. This fundamental right is afforded to the biological father of a child even when he is not recognised as the legal father. § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not sufficiently consider the requirements for the fundamental right of biological fathers and interfere with this right without constitutional justification.

I. 1. The right guaranteed to parents under Art. 6(2) first sentence of the Basic Law to care for and raise their children must be given effect in the statutory law by the legislator. Art. 6(2) first sentence of the Basic Law does not purport to establish which persons may assert the fundamental right of parental care and assume parental responsibility or the possibilities that must be granted to parents to enable them to fulfil their responsibilities. The legislator must determine which persons from the familial circle within the meaning of Art. 6(2) first sentence of the Basic Law have parental responsibility, the exercise of which is guided by the state pursuant to Art. 6(2) second sentence of the Basic Law. In giving the required effect to the fundamental right of parental care, the legislator must observe the defining structural elements of this right. This not only limits state interference with the right of the individual holder of the fundamental right, it also precludes 'essential changes' to the fundamental right of parental care.

2. In order to enforce the right to care for and raise children, which primarily is the responsibility of the child's parents, the legislator must provide for a legal framework in the ordinary (non-constitutional) law that enables parents to fulfil that responsibility. A defining structural element of the right of parental care under Art. 6(2) first sentence of the Basic Law is the link that exists in principle between the fundamental right of parental care and parental responsibility. This applies regardless of whether the determination of legal status as a parent within the meaning of Art. 6(2) first sentence of the Basic Law is based on biological origin or by operation of the ordinary law. However, the structural link between holding the fundamental right of parental care and the duty of parental responsibility does not mean that the legislator must accord parental status in the constitutional sense or assign parental responsibility in the same respect to all mothers and fathers in the ordinary law.

3. When establishing constitutional parenthood through corresponding classification provisions under ordinary law, the legislator, in determining the classifications, is bound by the defining structural elements of the right of parental care under Art. 6(2) first sentence of the Basic Law. Regardless of the classification provisions under ordinary law, parents within the meaning of Art. 6(2) first sentence of the Basic Law always include the biological parents of the child in the traditional sense, i.e. the man and woman whose joining of sperm and egg through sexual intercourse led to conception and the subsequent birth of a child by the woman.

4. Any parent in the abovementioned sense can in principle assert the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law. The fundamental right of parental care is defined by the assumption of responsibility for the child by the parent. It not only encompasses rights with respect to the relationship with the child, such as custody, but also includes the duty of caring for and raising the child. The right of parental care also includes the responsibility to ensure the physical, psychological and economic well-being of the child and to ensure that the child, in the exercise of their own right to the free development of their personality following from Art. 2(1) of the Basic Law, can develop into a self-reliant person within society. As the fundamental right of parental care is linked to having parental responsibility, then it must be in principle possible for parents within the meaning of Art. 6(2) first sentence of the Basic Law to be able to acquire such responsibility and exercise it. Providing for such possibilities is part of the legislator's duty; in addition, it must observe the defining structural elements of the fundamental right of parental care in shaping the ordinary law. That does not necessarily mean that the holders of parental responsibility for a child, and therefore also the fundamental right parental care under Art. 6(2) first sentence of the Basic Law, are from the outset limited to two parents.

Contrary to what has been assumed in the prior case-law of the Federal Constitutional Court, biological fathers whose status as a parent in the constitutional sense arises from their genetic connection to the child as a result of sexual intercourse with the child's mother are, as a starting point, holders of the fundamental right of parental care and can rely upon the guarantees in Art. 6(2) first sentence of the Basic Law. This also applies when, due to the parental classification under ordinary law, the mother and the legally recognised father of the child are also holders of this fundamental right. In a constellation where there are more than two holders of the fundamental right of parental care, it is part of the legislator's duty to provide the possibility for parental responsibility within the meaning of Art. 6(2) first sentence of the Basic Law to be assumed. In shaping the legal provisions relating to the parental status of - as in this case - the mother, biological father and legally recognised father who are fundamental rights holders, the legislator is not prevented from providing all parties with legal parental status; however, it is not required to do so.

5. In shaping the law on parental responsibility that is linked to the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law, the legislator has a margin of appreciation, both with regard to the status of the parent-child relationship as well as the specific rights and obligations of parents in regard to their child. Should the legislator decide to limit legal parenthood to only two persons, as it has in the current law, then it must in principle base that parenthood on the child's biological parents. If a man other than the biological father is the legally recognised father of the child, then having legal parenthood under ordinary law limited to only two persons restricts the fundamental right of the biological father under Art. 6(2) first sentence of the Basic Law. If, as in the case at hand, the ordinary law rules out legal paternity for more than one father - which as a starting point is permissible, although not required, under constitutional law -, then the biological father must have a procedure available to him by which he can in principle obtain legal paternity. This procedure must be sufficiently effective so as to take into account his fundamental right as a parent.

II. § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not do justice to the position of the biological father as a holder of the fundamental right under Art. 6(2) first sentence of the Basic Law. These provisions affect the fundamental right of the biological father and disproportionately restrict this right despite complying with the defining structural elements of Art. 6(2) first sentence of the Basic Law.

1. The aforementioned provisions affect the protection of the parental right guaranteed by Art. 6(2) first sentence of the Basic Law for biological, but not legally recognised fathers, which includes the opportunity to assume parental responsibility. Pursuant to § 1600(2) first alternative of the Civil Code, an existing social and family relationship of the child with their legally recognised father at the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code precludes the biological father from becoming the legally recognised father. This preclusive effect arises even when the biological father also has a social and family relationship with his child or when he has consistently sought to establish legal paternity starting at an early age. As legal paternity is a requirement for having custody of the child under ordinary law along with the legal instruments for the assumption of parental responsibility, biological fathers who are unsuccessful in challenging paternity are denied the parental responsibility that defines the parental right. The same applies when a social and family relationship between the child and the legally recognised father that precludes a paternity challenge later dissolves. Without the involvement and agreement of third parties, particularly the mother, it is then no longer possible for a biological father to become the legally recognised father. He is permanently excluded from assuming legal parental responsibility.

2. § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code are nevertheless compatible with the defining structural elements of the fundamental right of parental care. Should the legislator choose to continue to limit legal parenthood under the ordinary law to two persons, then the fundamental right of parental care in principle requires that biological fathers who are ready to assume parental responsibility have the possibility of attaining legal parenthood as a prerequisite to exercising parental responsibility. This is permitted by the currently applicable law (§ 1600(1) no. 2, § 1600(2) of the Civil Code), at least as a starting point. Under the ordinary law, a biological father can also obtain custody rights once he has attained legal parenthood.

3. The objectives pursued by the legislator in limiting paternity challenges by biological fathers through the provisions under review here for the purpose of stability and clarity in legal status and the protection of the existing family of the child, mother and legally recognised father are constitutionally legitimate. However, § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code disproportionately interfere with the fundamental right of biological fathers - including the complainant - under Art. 6(2) first sentence of the Basic Law.

a) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code result in a not insignificant interference with the fundamental right of biological fathers who are entitled to challenge paternity. The severity of such interference results from the fact that neither a prior social and family relationship between the biological father challenging paternity and the child nor one existing at the relevant point in time under § 1600(3) first sentence of the Civil Code has any significance for the assessment of the paternity challenge. Another factor for the severity of the interference with the fundamental right is that the ordinary law precludes, solely on the basis of the existence of the 'negative' prerequisite in § 1600(2) first alternative of the Civil Code at the relevant point in time, consideration of the type and extent of the petitioning biological father's efforts to obtain legal paternity or his relationship with his child.

b) Along with the protection of the social and family relationship between a child and their legal parents and the pursuit of legal clarity and certainty with regard to parentage, there are also interests of considerable importance that must be balanced with the fundamental right of biological fathers.

c) Despite the significance of the objectives pursued by the legislator, the rule [set out in § 1600(2) first alternative in conjunction with § 1600(3) first sentence of the Civil Code] does not provide for an appropriate balance between the respective rights of biological fathers and those of the legal parents and the child. The provisions indirectly challenged constitute an inappropriate interference with the fundamental right of biological fathers, because existing or prior social and family relationships with their child receive just as little consideration as the biological father's consistent efforts to obtain legal paternity, and because biological fathers are completely precluded from challenging paternity as soon as the negative prerequisite in § 1600(2) first alternative of the Civil Code comes into existence and remain so even if the social and family relationship between the child and the legally recognised father that caused the preclusion no longer exists. If the biological father has his own social and family relationship with his child, that strengthens his right to family life under Art. 6(1) of the Basic Law and his fundamental right of parental care. The negative prerequisite in its current form does not sufficiently take into account Art. 6(1) of the Basic Law and the fundamental right of parental care. It is true that neither Art. 6(2) first sentence nor Art. 6(1) of the Basic Law provide a biological, but not legally recognised father a claim to continue his parental responsibility with regard to his child. However, even if there is no such claim, there remains a personal connection between a biological father and his child, which is also supported through ties of kinship.

The challenged rule therefore also does not strike an appropriate balance between the objectives pursued by the legislator and the fundamental right of biological fathers to assume parental responsibility, because there are insufficient opportunities for biological fathers to have any influence on the prerequisites in § 1600(2) first alternative of the Civil Code through their conduct. The success or failure of an application to challenge paternity often depends on the vagaries of the chronological sequence of events, the wishes of the mother, the involvement of the youth welfare office (Jugendamt) and the caseload of the family courts, which can lead to a 'race against time' to establish legal paternity.

III. The challenged order of the Higher Regional Court violates the complainant's fundamental right of parental care. The order is based on the application of § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code, which are incompatible with Art. 6(2) first sentence of the Basic Law.

IV. The Federal Constitutional Court extends its declaration of incompatibility with the Basic Law to § 1600(2) second alternative of the Civil Code. The reasons for the unconstitutionality of § 1600(2) first alternative of the Civil Code also apply to the negative prerequisite of the existence of a social and family relationship between the child and their legally recognised father at the time of the latter's death.

V. Despite their incompatibility with the fundamental right of parental care, the affected provisions shall remain in force until new legislation enacted by the legislator goes into effect in order to permit biological fathers to continue to bring paternity challenges under the existing law if they believe their challenge has good prospects for success. If this is not the case, then biological fathers like the complainant may submit an application to the competent ordinary court to suspend their paternity challenge proceedings until the new law goes into effect.

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