Although questions on the family law structure of "divided motherhood" have been discussed for three decades now, the German legislator so far has only reacted in parts to the challenges of reproductive medicine. The lack of legal requirements on the one hand leads to the execution of Embryo Adoptions solely on the basis of legal business and on the other hand to “reproductive travel” (especially the utilization of surrogate mothers abroad), which leads to public authorities and courts being confronted with dramatic individual stories more often. In these cases motherhood is either “negotiated” in grey areas (Embryo Adoption) or initiated by reproductive medical measures abroad (egg donation and surrogacy), in which the parents and children involved in the reproduction process are mostly left alone with the risks of the German legal situation. In particular, § 1591 of the German Civil Code makes it impossible to take into consideration the interests of the involved persons and to develop individual solutions in cases of “divided motherhood”. Due to the taboo on divided motherhood, the scientific discussion on the relationship between genetic and social motherhood is still at its beginning.
This project will first address the question of whether the gender inequality inherent in the concepts of maternity and paternity can be objectively justified. In a second step, different models for the establishment of legal parenthood (for example on the basis of the genetic tie, by declaration of intent or "legal transaction" as in the recognition of paternity with the consent of the mother, or by judicial decision as in cases of adoption) will be examined taking into account comparative law approaches and interdisciplinary aspects. In particular, it is to be clarified under which conditions legal parenthood can be based on an agreement between genetic parents and wish-parents and how, in these cases, the well-being and interests of the child can be ensured. In this context, the conditions for the legal challenge of parenthood will also be discussed. As a result, an overall concept should be developed taking into consideration the interests of the parents involved in the reproductive process as well as the interests of the child. In doing so, the rapprochement of the conceptions of legal maternity and paternity is to be achieved.
The second project deals with the standardization of parenthood in the sense of social notions of normality, which are reflected in the law. The central question is whether and how the legal concept of parenting should be understood as a gendered category or in which areas a gender-neutral view has meanwhile established itself. The basis for this is an extended concept of gender, which apart from the binary assignment male / female must also be understood as heterosexually connoted and therefore includes the expectation of a sexual orientation to the opposite sex. The project studies motherhood with regard to the generation of children and to their legal assignment to specific parents. In addition, it addresses issues of parenting arrangements in the context of custody and access regulations as well as in the area of state family benefits and interventions in parental rights. On the level of the law of descent, it should first be stated that the traditional model of the family with two parents of different gender is still seen as the norm and also serves as the basis for legal norms: parenthood of more than two persons will not be accepted even if more than two persons are actually involved in the generation of the child. Conception by artificial insemination, which is generally accepted in Germany, is still not open to single persons or lesbian couples according to the guidelines of the German Medical Association and almost all methods that lead to “split” motherhood are illegal under the Embryo Protection Act. At the same time, the norm of the heterosexual model is being eroded by the recognition of same gender parenting in civil status law and many children experience a reality of interactions between parents of origin and stepparents that is not reflected in the right of descent. This project analyzes the legal discourse and the argumentative strategies that justify these restrictions, confronts them with empirical insights into the differentiation of life forms, and examines their constitutional and ethical justifiability. Unlike the law of descent, parental responsibility and the right of access to children are largely gender neutral. Discussions about parental responsibility, the right of access and the right to information of the unwed father clearly show that behind gender neutral legal wordings images of motherhood and fatherhood are to be discerned, which have effects not only in the legislative process but also in the application of law. This facet of legal regulation of parenthood will in essence be based on analyses of the case law on parental responsibility and the right to access. In particular, judicial decisions regarding parental conflicts and child endangerment will be taken into account. The goal is to work out how courts define "good" parenting and to gender-sensitively examine to what extent judgments are based on stereotypical ideas of the "good mother" and the "good father". In the process, intersectional entanglements with racist discrimination should also be taken into consideration, for example in the form of the special treatment of Turkish, African or Muslim fathers. At all levels of the project, international as well as comparative law aspects (in particular with regard to Austria, Switzerland, England) are included.
The German rules on the exercise of shared parental responsibility strongly emphasize the joint nature of this exercise (§ 1627 BGB) and require the joint legal representation of the child (§ 1629 Abs.1 S.2 BGB). If the parents disagree on matters of major importance to the child, the only solution is to turn to the family courts. This principle also applies to separated parents; only matters of daily life can be decided by a parent on her own, while separated parents must act in mutual agreement in matters of significant importance (§ 1687 BGB). Since joint parental responsibility became the norm in 1998, disagreements between separated parents over who can take decisions and what everyday life matters are have increasingly been debated in family courts. The disadvantages of the German model of a strong emphasis on the joint exercise of parental responsibility are evident in the lives of separated parents. The necessity of reaching an agreement gives the disagreeing parent a veto position and prevents important decisions.
Some European legal systems have chosen a different model of exercise of joint parental responsibility: the sole agency of each parent with the possibility of contesting the other’s decision by referral to the court (Poland, Norway, England). Agency and points of conflict are distributed differently, because this is not a blockade position, but a (often subsequent) correction option. The advantages and disadvantages of these regulations have not yet been researched internationally; there is also a lack of empirical research on how the differences in these legal provisions in practice affect the exercise of shared parental responsibility in comparable conflict situations. In Germany, the current rules are hardly questioned, although they were originally designed for married parents and since 1958 supposed to give equal rights to married mothers who used to be discriminated against in family law. The rules caused few problems as long as it was the practice to give parental responsibility to one of the parents after divorce. But this changed in 1998. In contrast, the model of independent exercise with the possibility of objection can certainly offer advantages - also because it facilitates the opening for 'more than two parents'. From a gender perspective, it is necessary to investigate comparative law and to reflect on the impact of the two basic types of regulation on the negotiating positions of the participants. A further empirical international comparative research project should be prepared.