A mother in Spain, but childless in Germany | Germany| News and in-depth reporting from Berlin and beyond | DW | 14.07.2012
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A mother in Spain, but childless in Germany

Two mothers and a child - in many European countries, this type of family is no longer something exotic. But Germany has less liberal laws on gay marriage, which can lead to legal conflicts for families.

Holding her baby close, Patricia is all smiles. In her home country, Spain, she is a married woman - and mother of an eight-year-old boy. In Germany, however, her marital status is technically referred to as a "registered partnership," and the child is merely - and solely - the son of her German partner, Katharina.

The two got married three years ago in Spain, "where that's officially possible. There, we have a so-called gender-neutral marriage, with all legal privileges that come with it," Katharina explained. "Should a child be born into this marriage, it is automatically the legal child of both partners."

In Spain: a mother

The German Katharina gave birth to the boy in Spain. There, the family of two mothers and one child lived a normal - and legally sanctioned - life. As a matter of course, Patricia's motherhood was legally registered and never questioned.

"It's important to have unambiguous legislation, which clearly states that same-sex-couples are to be treated equally," Katharina said. And that, in return, has consequences for everyday life: "You immediately feel that there’s much stronger acceptance, even in a society which is otherwise rather conservative," she said.

The two mothers with their son sitting between them

Two mothers with one son in Spain - but what are they in Germany?

Spain isn't the only country that has made way for marriage between same sex couples; in Belgium, the Netherlands, Sweden and Norway, too, homosexual couples are legally allowed to marry.

In Germany, such a marriage is only recognized in the form of what's termed a registered partnership, which is not equal to a marriage between a man and a woman in many ways - for instance, when it comes to important aspects such as family and tax laws. Also, doctors are not allowed to conduct in vitro fertilization, and once a baby is born, the child officially remains the progeny of only the mother who gave birth.

So when work forced Katharina and Patricia to move to Germany, that is where their problems began.

In Germany: red tape and legal hurdles

Trouble in Germany started with public authorities who didn't know how to deal with their Spanish documents - after all, the child's birth certificate bore the name of two women.

"First, they said: Patricia won't be his mother, and then they decided I wouldn't be his mother." When Katharina recalls that period, her speech grows hasty and agitated. For some time, the child officially didn't have any parents at all, until Katharina was ultimately registered as mother again.

Criticism that Katharina and Patricia didn't do their homework in terms of family planning would be misguided: In Leipzig, they sat down with the city's equal opportunity commissioner to go through every possible scenario. Commissioner Kathrin Darlatt said that both women had done extensive reading and research beforehand - noting that, in practice, some things are just impossible to anticipate. What commissioners like Darlatt can do is give advice to couples like Katharina and Patricia, and directly liaise with other authorities on their behalf. This helps to avoid long and time-consuming mediation between the involved institutions.

Adopting one's own child?

Two fathers and their child

Registered partnerships can cause legal quandries

They quickly realized that, according to German law, Patricia needed to adopt her spouse's son. By means of a Stiefkindadoption (step-child adoption), this is also possible for members of a registered partnership. The process is fairly easy - in theory.

On average, adoptions of that sort take around one year, but for Katharina and Patricia that, too, didn't work out because Patricia is currently without a steady job.

"But among scientists it's always like that," Katharina said. "In my field, limited post-doctoral contracts and a lot of moving back and forth are the norm."

Unfortunately, though, if someone wants to adopt, that person has to give proof that he or she can afford all necessary child support.

"That's really nonsense, as Patricia is the one who mostly takes care of the child," said Katharina. Currently, she has a small job, while Patricia is, in traditional family parlance, housewife and mother. They make for a well-rehearsed team, and, as long as nothing happens, the family is a success. But Katharina is worried: "Should anything happen to him, Patricia isn't allowed to make any decisions. Officially, she is a nobody."

A clash of German and Spanish law

A mother holds her child in the air

At home in Spain, Patricia adopted her partner's son

Tomas Rauscher, a legal expert at Leipzig University, believes that Patricia's unemployment shouldn't be anything to worry about. After all, he said, when the city authorities demand proof of available child support, they do it in order not to separate the child from the person who is in a better position in terms of finances to care for it. That can easily be the partner who is not the bread-winner in a marriage.

What causes much more trouble for the two is their Spanish marriage. For anyone but legal experts, the issue is close to a paradox: In a step-child adoption, authorities have to apply the laws from the place of residence of the person who wants to adopt. But, in Spain, Patricia already is a legal mother of the child.

"Therefore, the Spanish law really doesn’t help us, since it says this adoption isn’t necessary to begin with," Rauscher explained.

Spanish law precludes a mother from adopting her own child. Yet, Rauscher believes Katharina's and Patricia's situation looks rather promising because he doesn't see any major factor standing in the way of an adoption.

"Instead," he said, "it appears that a conflict of law has been created that should be rectified."

But to resolve this conflict, Katharina and Patricia would need a lawyer - and that can translate to a lot of money, time and patience, all of which they have already spent in abundance during the past months. Briefly they had considered moving back to Spain, but now the job market there looks anything but promising, Katharina said. These days, the couple seems weary. After all, what Patricia and Katharina wanted most was to be parents and simply enjoy time together with their baby.

Author: Ines Neumann / ag
Editor: Greg Wiser

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