Zum Recht des Kindes auf Information über seine leiblichen Eltern und zum Recht der Eltern auf Information über tatsächliche Mutter- bzw. Vaterschaft

Abstract

It is true that the Federal Constitutional Court has explicitly affirmed the child's right to know his/her own descent; the parents' right to information regarding their natural paternity can be derived from the Constitution of the Federal Republic of Germany as well. This, however, does not determine who is entitled and at what point one may request information on the actual descent of a person. Neither does the right lay down from whom information may be requested or who could be sued for what kind of information. Further it leaves unanswered who would be in the position to enforce the judgement eventually. The adoption law is the only one containing legal provisions. The judicial decisions are unclear and inconsistent. It is still possible that there is a permanent difference between the legal and the actual paternity. In Germany, there is currently no room for determining genetic maternity that would differ from the legal maternity. Only older, grown-up children and men whose legal paternity has been eliminated in previous court proceedings are entitled to sue for information regarding their biological descent. Linked to this is the prohibition of secret paternity tests. In the question who is entitled to information regarding the actual descent (and whether there is such a right), financial, fiscal, health and purely moral interests of both, the parties involved and the public authorities must be balanced. In connection with a heterologous insemination, information regarding the genetic descent must not only be provided by the mother and the (legal) father but also by public authorities and other third parties, particularly physicians. Insufficient documentation on the part of the physician involves the risk regarding the liability for damages vis-à-vis the child who is entitled to receive information.