European Court of Human Rights

Information Note on the Court’s case-law No. 163

May 2013

Boeckel and Gessner-Boeckel v. Germany (dec.) - 8017/11

Decision 7.5.2013 [Section V]

Article 14

Discrimination

Refusal to register one of the mothers as a parent in the birth certificate of the other partner’s child although they were in a registered civil partnership: inadmissible

 

Facts - The applicants are two women who have been living together in a registered civil partnership since 2001. In 2008 the second applicant gave birth to a son. A birth certificate was issued naming her as the mother. The space provided in the form for the father’s name was left blank. In 2009 the applicants concluded an agreement whereby the child would be adopted by the first applicant. The district court granted the adoption order and declared that the child obtained the legal position of a child of both applicants. In the meantime the applicants requested the district court to rectify the child’s birth certificate by inserting the first applicant as the second parent. They submitted that the Civil Code, which stipulated that the father was the man who was married to the mother of the child at the time of birth, should be applied mutatis mutandis in cases where the mother lived in a registered civil partnership with another woman and argued that it was irrelevant whether the mother’s husband was indeed the biological father of the child born into the union. There was thus no reason to treat children born into a civil partnership any differently from children born in wedlock. The domestic courts rejected their request and subsequent appeal.

Law - Article 14 in conjunction with Article 8: In view of the fact that the first applicant had eventually obtained full legal status as the child’s second parent, the question arose whether the applicants could still claim to be victims of a violation of their Convention rights within the meaning of Article 34 of the Convention. However, having regard to the nature of the applicants’ complaint, the Court based its further examination on the assumption that the applicants could still claim to be victims of a violation of their Convention rights in view of the fact that the first applicant had had to undergo the adoption process in order to be recognised as the second parent. The applicants lived together in a registered civil partnership and were raising the child together. It followed that the relationship between the two applicants and the child amounted to “family life” within the meaning of Article 8 of the Convention. Accordingly, Article 14 of the Convention in conjunction with Article 8 was applicable.

The first issue to be addressed was whether the applicants, who had been living together in a registered same-sex civil partnership when the second applicant had given birth to a child, were in a situation which was relevantly similar to that of a married different-sex couple in which the wife had given birth to a child. The Court took note of the domestic courts’ reasoning according to which section 1592 § 1 of the Civil Code contained the - rebuttable - presumption that the man who was married to the child’s mother at the time of birth was the child’s biological father. This principle was not called into question by the fact that this legal presumption might not always reflect the true descent. The Court also noted that it was not confronted with a case concerning transgender or surrogate parenthood. Accordingly, in cases where one partner of a same-sex partnership gave birth to a child, it could be ruled out on biological grounds that the child descended from the other partner. The Court accepted that, under these circumstances, there was no factual foundation for a legal presumption that the child descended from the second partner. Having regard to the above considerations, it could not be said that the applicants had found themselves in a relevantly similar situation to a married husband and wife in respect of the entries made in the birth certificate at the time of birth. Consequently, there was no appearance of a violation of Article 14 of the Convention read in conjunction with Article 8.

Conclusion: inadmissible (manifestly ill-founded).

 

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This summary by the Registry does not bind the Court.

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