Unequal treatment by current parentage law: queer mothers sue

With the initiative "nodoption" queer mothers draw attention to the fact that they have to adopt their own children. Now they are going to court.

A typical family: lesbian couple with child and dog Photo: Meike Engels/imago-images

In front of the district court in Tempelhof-Kreuzberg, Christina Klitzsch-Eulenburg hands out rainbow flags. She smiles a lot and chats with women who, like her, are filing petitions – for recognition as the legal parents of their children.

According to the German Civil Code (BGB), Klitzsch-Eulenburg is not recognized as a parent, even though she is married to the mother of her child. Klitzsch-Eulenburg, along with other queer parents, founded the Germany-wide "nodoption" initiative.

So far, five married couples in Berlin have filed lawsuits with the family court to have the mother’s wife established as the second legal parent of their children born into the marriage. They thus follow two families from Hildesheim and Frankfurt. Further lawsuits are in preparation.

Together with attorney Lucy Chebout, these families are following a strategic litigation approach. This means that clients and lawyers exchange information and follow a common strategy.

All the way to the highest court

Klitzsch-Eulenburg and her wife Janina Eulenburg are determined to take their lawsuit all the way to the Federal Constitutional Court: "For now, it’s unlikely that we’ll be proven right in the first instance," says Klitzsch-Eulenburg. "But my wife and I definitely want to go all the way to the last instance."

The background to this is the law of parentage laid down in the German Civil Code (BGB). § Section 1591 regulates maternity: "The mother of a child is the woman who gave birth to it." When marriage was opened in 2017, the law was not reformed. Thus, a child born to two married women has only one legal parent. There is also no mention of other genders.

Already in 2018, a lawsuit was unsuccessfully filed in the Federal Court of Justice. The initiative "nodoption" has no contact with this family. The initiative does not know why this family did not sue all the way to the Federal Constitutional Court.

Fundamental decision desired

"We are now rolling up the issue by way of strategic litigation to bring about a fundamental decision," says attorney Chebout. "The current law on parentage violates the fundamental rights of children and wives."

Before the four families file their lawsuit, they pose for a photo: The activists spread a rainbow flag about three meters long in front of them, twin mothers hold a banner together with Klitzsch-Eulenburg that reads "nodoption – recognize parenthood". In between, mothers rock their children in slings. After the photos are finished, the four families throw their applications into the mailbox of the district court. The other activists clap and cheer.

One plaintiff, Marianne Greenwell, says, "This takes the feeling of powerlessness away from me. Before we met people, my wife Jane and I felt so alone." Greenwell is adopting her child Robin alongside the lawsuit. She underestimated how much the adoption would take her emotionally, she said. "We knew we had to do this, but it hit me hard."

The plaintiffs do not want to wait for the announced draft law by Justice Minister Christine Lambrecht (SPD). Attorney Chebout says: "At the moment it is not at all foreseeable whether the announcement will really become a law. It is not reasonable for the affected families to accept the discriminatory legal situation any longer."

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