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OLG Celle: Parenthood must be permanent
Same-sex unmarried and unmarried parents of a child carried out by surrogacy are not considered parents under insurance law. Therefore, a privately health insured person cannot request that his partner's child thus born be included in his health insurance contract, the Higher Regional Court (OLG) Celle decided in a judgment announced on Monday, March 11, 2019 (file number: U 178/18).
In the specific case, the plaintiff and policyholder lived in the same sex relationship with his partner. They were not married or partnered. Since they wanted to have children, they used the help of a surrogate mother in the USA. Surrogacy is prohibited in Germany.
With a partner's sperm donation, her child was finally born in the United States. The Superior Court of California declares the gay couple to be the child's parents. The policyholder and his partner are also registered as parents of the child in the birth certificate of the responsible registry office.
When the plaintiff asked for the child to be included in his private health insurance contract and to be privately insured, the insurer refused.
The relevant insurance conditions provide for the child's supplementary insurance if the insurance for one parent exists for at least three months at the time of the birth and the application for admission is made within two months of the birth.
However, the plaintiff is not a parent under insurance law, so the OLG ruled in his judgment of February 28, 2019 that he could not request reinsurance of his partner's child. Whoever is a “parent” should comply with German parentage law, which is a same-sex law I don't know parenthood. Parenthood regularly requires a mother and a father.
According to a decision of the Federal Court of Justice (BGH) of December 10, 2014, same-sex parents of desire could also equate the child with socially equivalent parenthood, as is the case with different-sex parents (Az .: XII ZB 463/13; JurAgentur-announcement from 19 December 2014). The prerequisite for this, however, is that “parenting is long-term and legally established”.
This is lacking here because the policyholder and the child's biological father were neither married nor partnered. When a US court awarded parenthood, it was also not checked whether the partnership was stable and permanent. fle