The Basic Law does not require the existence of a right aimed at determining parentage vis-à-vis the putative biological father

Press Release No. 18/2016 of 19 April 2016

Judgment of 19 April 2016
1 BvR 3309/13

In a judgment pronounced today, the First Senate of the Federal Constitutional Court decided that the Basic Law does not require the legislature to provide a procedure for determining parentage without legal consequences vis-à-vis the putative biological father who is not the legal father. The protection of the knowledge of one’s origins – a protection derived from the general right of personality (allgemeines Persönlichkeitsrecht) – is not an absolute one but has to be reconciled with conflicting fundamental rights. In this regard, the legislature possesses a leeway to design (Ausgestaltungsspielraum). It remains within the legislature’s leeway to design to only provide means for determining parentage without legal consequences within the legal family but not vis-à-vis the putative biological father who is not the legal father. The same assessment applies if seen in the light of the European Convention on Human Rights (ECHR) – and irrespective of the fact that [German] constitutional law would permit a different legal solution.

Facts of the Case:

The complainant, who was born out of wedlock in 1950, assumes that the respondent in the initial proceedings (hereinafter: the respondent) is her biological father. In 1954, the complainant took legal action against the respondent, seeking “establishment of parentage by blood type” (“Feststellung blutsmäßiger Abstammung”) according to the law applicable at that time. The Regional Court’s (Landgericht) decision dismissing that action in 1955 became final. In 2009, the complainant requested the respondent to consent to a DNA test “to conclusively determine” his biological paternity, which the respondent refused. Subsequently, the complainant – relying on § 1598a of the Civil Code (Bürgerliches Gesetzbuch – BGB) – requested the respondent to consent to a genetic parentage test and to submit to the taking of a genetic sample suitable for that test; the constitutional complaint proceedings originate from this legal action. [Translator’s note: The translation of that provision, available at https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5529, employs the term “appropriate” instead of “suitable” and “acquiesce” instead of “submit to”.] § 1598a BGB provides such a right for the father, the mother, and the child within a legal family vis-à-vis the other two members of that family. According to the complainant , § 1598a BGB should be interpreted in conformity with the Basic Law and human rights (verfassungs- und menschenrechtskonforme Auslegung) so that also the respondent, as the putative biological but not legal father, could be requested to participate in proceedings aimed at determining parentage without legal consequences (rechtsfolgenlose Abstammungsklärung). The Local Court (Amtsgericht) held that provision to be inapplicable and rejected the complainant’s action. The complaint lodged against that decision before the Higher Regional Court (Oberlandesgericht) was unsuccessful.

Key Considerations of the Senate:

The constitutional complaint is admissible but unfounded. The challenged decisions do not violate the complainant’s fundamental rights.

The Local Court’s and the Higher Regional Court’s interpretation of § 1598a BGB is not objectionable under constitutional law. The extensive interpretation of that provision in conformity with the Basic Law that is sought by the complainant is out of the question: The current legal situation, which neither in § 1598a BGB nor in other legal provisions provides for an isolated right against the putative biological but not legal father to determine parentage (isolierter Abstammungsklärungsanspruch), is compatible with the Basic Law. [Translator’s note: With regard to § 1598a BGB, the above-mentioned translation of the BGB uses the term “clarify” instead of “determine”.] In particular, a child’s general right of personality is not violated by the fact that the child may only have the biological paternity of the man whom he or she assumes to be the biological father but who is not the legal father determined against the will of that man by means of court proceedings establishing legal paternity (§ 1600d BGB) but not within the context of isolated proceedings aimed at merely determining parentage (isoliertes Abstammungsuntersuchungsverfahren). [Translator’s note: With regard to § 1600d BGB, the above-mentioned translation of the BGB employs the term “court determination of paternity”.]

1. The question of whether one has the means of determining paternity of the presumptive biological father falls within the scope of the general right of personality, which guarantees that available information on a person’s origins is not withheld from him or her. In this respect, in designing legal relationships between the persons concerned, the state is under a constitutional obligation to appropriately take into account the legitimate interests of those individuals from whom available information on their origins is withheld.

2. However, in designing private legal relationships, the legislature, as a rule, possesses a broad margin of appreciation (Einschätzungsspielraum), a broad margin of assessment (Wertungsspielraum), and a broad leeway to design (Gestaltungsspielraum). The legislature has such scope particularly in cases in which conflicting fundamental rights are at stake. It is only in exceptional cases that fundamental rights require a specific course of action of the legislature acting in the field of private law. While the Federal Constitutional Court has indeed placed the legislature under an obligation to specifically regulate the issue of knowledge of one’s origins, it did not require the legislature to provide children with the means of determining their biological ties with the putative biological but not legal father in isolated proceedings.

3. If parentage is determined against the will of the putative biological father, several holders of fundamental rights are affected to varying degrees.

a) Both the man whose biological paternity is to be determined against his will and the mother are entitled to the protection under the specific right not to disclose information on sexual relationships that is derived from the right to respect for one’s private and intimate sphere (Recht auf Achtung der Privat- und Intimsphäre) (Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 of the Basic Law, Grundgesetz – GG). The biological parents’ legitimate interest not to disclose sexual relationships would from the outset carry less weight compared to the interest of their child to know his or her own parentage if the child in fact resulted from this sexual relationship. Whether this is the case, however, is uncertain; rather, it is exactly this uncertainty that is meant to be eliminated through the proceedings sought.

b) In addition, other fundamental rights of the man whose biological paternity is to be determined against his will are affected. Genetic parentage testing and the taking of a suitable genetic sample for the test interfere with the right to informational self-determination (Recht auf informationelle Selbstbestimmung) (Art.  2 sec. 1 in conjunction with Art. 1 sec. 1 GG) and the right to physical integrity (Recht auf körperliche Unversehrtheit) (Art. 2 sec. 2 GG).

Furthermore, the determination of parentage can affect the family life protected by Art. 6 sec. 1 GG both of the man required to participate in the proceedings and of his family. The family’s awareness of the possibility that the man might have another child does not leave family life unaffected. This holds true irrespective of whether the paternity test confirms the suspicions or not; these effects cannot be entirely reversed even if the result of the paternity test is negative. The adverse impact is even stronger if the proceedings aimed at determining parentage in fact confirm that he is also the father of another child.

c) Moreover, ordering and performing the parentage test to determine biological paternity might affect the family life protected under Art. 6 sec. 1 GG of the members of the child’s existing legal family. Due to the proceedings aimed at determining parentage, the family is already faced with the suspicion and the possibility that those proceedings may reveal that the child’s legal father is not the biological father. Thereby, the persons concerned lose their certainty and trust in their familial relationships. That burden mirrors the burden felt by the family of the putative biological father and arises already by the mere possibility that another man might be the biological father. The strain on family life is particularly heavy if the proceedings aimed at determining parentage reveal that the child’s legal father is not the biological father.

d) Additionally, the determination of parentage interferes with the legal father’s general right of personality, as the assumption to have a genealogical relationship with his child can have a pivotal role for his self-image.

e) Besides, providing means for determining parentage in isolated proceedings and between persons who are not connected by a legal parent-child relationship entails the risk that parentage investigations are initiated at random. Therefore, a considerable number of people might be affected by the above-mentioned interferences with fundamental rights. There is no such risk in the context of determining parentage pursuant to § 1598a BGB, thus within the legal family, as only members of the legal family are entitled to initiate such proceedings and under a legal obligation to participate therein. However, this regulating effect does not exist if – as in the present situation – persons not belonging to the legal family are subject to a legal obligation to participate.

4. The legislature’s decision not to provide the means for determining parentage in isolated proceedings vis-à-vis the putative biological father observes the constitutional limits of permissible legislative design. It would be compatible with the Basic Law to provide such proceedings. However, the child’s general right of personality does not require the legislature to do so, especially as the child who wants to determine the parentage from the man whom he or she assumes to be the biological father is not left without rights. In fact, the child can request the family courts to establish that man’s legal paternity according to § 1600d BGB, as, in such proceedings, the courts incidentally determine his biological paternity. If the result of those proceedings is positive, a legal father-child relationship is established, including all mutual rights and obligations. The complainant does not possess this possibility, – in her view – only because she already once unsuccessfully sued the defendant to establish his legal paternity (Vaterschaftsfeststellungsklage).

The solution chosen by the legislature not to permit isolated proceedings to determine parentage of the putative biological but not legal father takes account of the fact that such proceedings may result in a negative finding, a possibility that cannot be ruled out due to the uncertainty of the biological paternity, and which would be the least favourable scenario in respect of the fundamental rights of the parties concerned. In such a case, investigating parentage would, on the one hand, not provide the child with the certainty sought about his or her biological origins, while, one the other hand, it would – mostly irreversibly – interfere with the fundamental rights of the other persons concerned. It is impossible to limit from the outset, through legislation or individual decisions by the courts, the possibility to initiate isolated proceedings to determine parentage to those cases in which the putative biological father indeed is the genitor of the child. Therefore, the legislature was allowed to also base its balancing on the scenario that the putative biological father who is required to participate in the investigation of parentage is not the genitor.

5. This result does not change when the European Convention on Human Rights and the case-law of the European Court of Human Rights (ECtHR) are taken into account, which are to serve as a guideline for the interpretation of the content and scope of fundamental rights. According to the case-law of the European Court of Human Rights, the right to respect for private life under Art. 8 sec. 1 ECHR contains the right to identity, which includes the right to know one’s parentage. However, one cannot derive from the case-law of the ECtHR that there must be a possibility to determine one’s origins in isolated proceedings in addition to the already existing possibility to establish legal paternity.