Case law Developments in PIL

Mater non semper feminina est: A Transsexual Man Giving Birth Leaves the Berlin Authorities Confused

Facts

An Austrian national (A) was born in 1975 as a woman. In 2010, at A’s request, the Austrian authorities changed A’ first name, and in 2016 A’s gender to “male”. A married a German male national in July 2019 in Berlin. On the same day, A gave birth to their common child there. The German authorities were unsure about how to enter A into the birth register.

Ruling

On 21 January 2021, the Court of Appeal Berlin (Kammergericht) rendered a Solomonic judgment (docket number 1 W 1290/20, published in NJW-RR 2021, p. 387, paywall access here). It ruled that A was to be registered as the child’s mother, but that A’s gender was to be recorded as “male”. This solution was reached through applying a combination of the formal rules governing the birth register, conflict-of-laws rules, and an interpretation of substantive law.

Formal Rules on Civil Status

The Court justified the registration of A as a “mother” by the formal procedural rules governing the German civil status (Personenstandsgesetz) as the lex fori. According to these rules, the person giving birth to the child is to be registered as the mother, independently of their gender. A’s status as a mother would follow from the fact that A had given birth to the child.

Conflict of Laws

The Court also tried to justify this rather formalistic solution by the law applicable to the substantive legal relationship between A and the child. In order to do so, it had to identify the law applicable to kinship.

The Court highlighted that since the child has its habitual residence in Germany, German law applied to the relation of kinship (Article 19(1) 1 of the German Introductory Act to the Civil Code – EGBGB). Yet in addition to habitual residence, German international family law provides further connecting factors with the goal of establishing, as far as possible, a parent-child relationship. In particular, the relationship of descent from a parent can also be derived from the law of the state of this parent’s nationality (see Art 19(1) 2 EGBGB). In the present case, given A’s Austrian nationality, this would lead to Austrian law. Finally, kinship could also be established under the law governing the general effects of the marriage (Art 19(1) 3 EGBGB). Under German conflicts law, the general effects of same-sex marriages are, in the absence of a choice of law by the spouses, submitted to the law where the same-sex marriage is registered (Art 17b(4) EGBGB).  In the present case, this again led to German law. Hence, German and Austrian law apply to questions of kinship, with a preference for the law that is more likely to establish a parent-child-relationship.

Substantive Kinship Law

A substantive problem is that the German Civil Code defines the mother of a child as the “woman who gave birth to the child” (sec. 1591 German Civil Code – BGB). A very similar provision exists under Austrian law (sec. 143 Austrian Civil Code – ABGB). Seemingly, these provisions do not allow a man to be registered as a mother.

However, the German Federal Court had previously held that the role of the mother and the female gender must always be attributed to the person giving birth to the child (Bundesgerichtshof, decision of 6 September 2017 – XII ZB 660/14). It is true that the Act on Transsexuals, on which the Federal Supreme Court had relied, was not applicable given that A had changed its name and gender abroad, i.e., under Austrian law. Nevertheless, the Berlin Court of Appeal followed the precedent set by the Federal Supreme Court. It argued that the notions “mother” and “woman” in sec. 1591 BGB would refer to a specific role in the procreation of the child, and were to be understood in a biological and not in a legal sense. Since A had given birth to the child, A would have to be considered as the mother and consequently also as a “woman” for the purposes of this provision.

The Berlin Court of Appeal also pointed out that A could not be registered as a father, despite being male. A did not meet the necessary requirements to be registered as the child’s father, as he was neither married to the mother at the time of the child’s birth, nor has his paternity been acknowledged or established by the court (sec. 1592 German Civil Code – BGB). Moreover, under German law, every child can only have one father and one mother. As A’s husband had been registered as the father, this role was precluded for A. The Court also pointed out that gender-neutral registration is not foreseen under German law.

In Austria, no special rules exist for transsexual persons as mothers. Yet the Court of Appeal pointed to the Austrian practice under which a woman who had changed her gender before giving birth to a child could be entered into the central civil status register as the mother. The result would be basically the same as under German law.

Substantive Gender Law

With regard to the recording of A’s gender in the birth register, the Berlin Court of Appeal referred to Art 7 EGBGB, which submits questions concerning the legal personality and legal capacity of natural persons to the law of their nationality. This provision would apply, by analogy, also to gender identity. Hence, Austrian law was applicable. The Court remarked that the Austrian authorities had issued a birth certificate for A with the gender “male”. Similar documents had been submitted for purposes of the wedding. The Austrian authorities had also recorded A’s gender as male when registering the child’s birth in the general civil status register. There could therefore be no serious doubt about A’s gender. The Austrian acts and documents would have to be respected in Germany. As a result, a man was registered as a mother.

Assessment

The case illustrates the need for reform to German and Austrian family law. Both still are based on the assumption that the mother of a child is always a woman, which is no longer universally true, as illustrated by the present case. The Berlin Court of Appeal’s distinction between the sex in a biological sense and gender a legal sense can hardly convince when applied in a purely legal context. Where someone is recognised as having a certain gender, this must apply in all legal circumstances. The proper solution therefore would be to define the mother purely functionally as the person giving birth to remove the reference to a “woman” in both sec. 1591 German BGB and sec. 143 Austrian ABGB. This could be best done by a change of the law; in the absence of such reform, an adaptive interpretation is indispensable.

With regard to A’s gender, the Berlin Court of Appeal could have shortened its ruling. It should simply have accepted the Austrian documents on the basis of the CJEU case law that demands the recognition of civil status acts rendered in other Member States (see for the registration of names e.g. CJEU, C-391/09, Runevič-Vardyn and Wardyn). A conflicts analysis was therefore unnecessary in this context.

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