Dissolving biological bonds

In Germany, proposed legal changes raise significant questions about the meaning of the family and, in particular, the nature and role of parents, argue Bernd Ahrbeck and Marion Felder.

The German government, a coalition of the Social Democratic, Green and Liberal parties, has announced a major family law reform, arguably the largest ever in the country’s history. It covers three main areas: the so-called ‘Community of Responsibility’, which is intended to expand the circle of parents to up to four people; the ‘Self-determination Law’, which legalizes sex change solely through language (‘I say I am a woman and therefore I am a woman’); and the legalization of some types of surrogacy, which was previously completely banned. Each of these reforms raises significant questions about the meaning of the family and, in particular, the nature and role of parents.

A family is not a ‘Community of Responsibility’

Parental responsibility for children will be fundamentally expanded through a new legal framework, the ‘Community of Responsibility’. The plan makes it legal for up to four parents to jointly care for a child. Two ‘social parents’ can be added to the two biological parents. This is intended to take account of the fact that a wide variety of living arrangements have now become established that differ from the traditional nuclear family.

Historically, this is not entirely new. There have always been family separations and re-groupings, with some children growing up with parents with whom they have no genetic connection. The introduction of same sex marriage has also contributed to a change in perspective, as has the growth of surrogate motherhood. New forms of cohabitation are celebrated – including ‘rainbow families’ that self-confidently declare themselves to be progressive and are often presented as superior to the bourgeois nuclear family. Enshrining the ‘Community of Responsibility’ into law formalises these social changes and creates a legal and moral equivalency between all types of living arrangements.

Few have asked what the move to a Community of Responsibility could mean for children and how it might affect their well-being. Child welfare seems to take a back seat to the interests of the adults. When there are four equal parents, biological connections recede into the background. The identity of a child’s biological mother or father is no longer of primary importance. Ancestry and social assignment come to be considered equally valid. This can lead to considerable angst for individuals. The question of one’s own origins is one of belonging and attachment that lasts a lifetime. It represents an elementary psychological need and contributes significantly to the formation of identity. A child’s search for unambiguity and exclusivity is obvious, gaps in a personal biography are difficult to bear. The German researcher Andrea Hansert has recently shown how central descent is as an anthropological category. It cannot be replaced by social constructions. It is for this reason that Germany’s highest court has established that a child’s biological origins cannot be concealed. Nonetheless, their significance will be relativised within a Community of Responsibility.

But there is more to be concerned about than genetics. In general, the more people there are involved in a child’s life, the more difficult it becomes to make decisions relevant to parenting. Even two parents can struggle with this! Parenting is a demanding and inherently conflictual process that is not made easier when parental rights are distributed across more people. The confusion this creates can lead to disorientation and cause children to suffer from significant internal conflicts. Longed-for co-operative, close and harmonious relationships are less likely to exist the more people are intimately involved in raising a child, no matter what the proponents of ‘rainbow families’ might suggest.

The Community of Responsibility makes it possible for new adult living arrangements to form around a child, with partners who want a child but explicitly do not see themselves as lovers (co-parenting). The child, regardless how it may have come into the world, grows up with parents who do not want to have an intimate relationship with each other – and yet are still regarded as his or her parents. Such arrangements acknowledge that each adult is free to form new relationships outside of co-parenting, perhaps on multiple occasions, from the beginning of a child’s life.

Sex is not a linguistic act

Unlike the Community of Responsibility proposals, the new Self-Determination Act has provoked much opposition. However, it is now being enacted into legislation unchanged in its core. The Self-Determination Act will make it possible for people to change both their name and their registered sex simply by making a personal declaration at a registry office. Changing gender will become a purely linguistic act. No kind of psychological assessment will be required; it is considered an unreasonable interference in self-determination, even for children and adolescents. A change of sex category for children under 14 still requires parental consent; however, from the age of 14, children can now decide for themselves what sex they wish to be. The wishes of their parents can be overruled if a family court judge sides with the child and does not consider his or her welfare to be at risk. This is based on the conviction that gender is determined by a person’s subjective feelings. The basic biological makeup of the human being is disregarded and, moreover, the existence of two biological sexes is denied.

Children and adolescents are thus placed in a situation that hopelessly overburdens them. Safeguarding, on which they urgently depend, is abandoned. What’s extraordinary is that children and young people are not granted such freedom of choice in other areas of life. It seems to be of little importance to legislators that gender dysphoria and the desire to transition mostly desist as children progress through adolescence. Left alone, a reconciliation with their biological sex often takes place. The increasing number of detransitioners is a reason for particular caution. Likewise, no account has been taken of the reasons behind such a steep increase in the numbers of children, especially pubescent girls, who suddenly want to change their sex (Rapid Onset Gender Dysphoria), even though there is much evidence to suggest that ‘social contagion’ occurs. An important protective function is omitted when medical and psychological counseling and assessments are dispensed with for children and adolescents as well as for adults.

The Self Determination Act makes it possible for people to change gender without medical intervention. However, it is likely that a change in a person’s official gender identification will make it easier for them to access interventions such as puberty blockers, cross sex hormones or surgery. It would be naive to assume that the llaw will remain inconsequential on this point, as Renate Försterling, a German transsexual doctor, states. Moreover, it can be assumed that both legal changes and medical interventions make it more difficult for a person to change their mind and return to their biological sex.

It is astonishing how resolutely Germany is pursuing a trans-affirmative path and thus closing its mind to current international developments. In the meantime, a rethinking has begun in other countries. In Great Britain and Sweden, the use of puberty blockers is restricted to clinical studies, and in Denmark, medical interventions have also been restriced. The French Académie Nationale de Medicine calls for very cautious use of puberty blockers. Finland adheres to the guideline that puberty blockers should only be prescribed in individual cases. Instead, psychosocial interventions and psychotherapy should be pro-vided. In the UK, the transgender departments of the Tavistock Clinic have been closed because its long-standing commitment to trans-affirmative care raised too many concerns about child welfare. All too often, children’s wishes were followed without intensive psychological care. The fact that the supreme court upheld the complaint of one of the victims, Kiera Bell, was a wake-up call for international professional discussion. German legislation, however, remains completely unaffected by these developments.

A womb is not a commodity

Surrogacy is not yet permitted in Germany. The Embryo Protection Act, together with other pieces of legislation, prevents split motherhood, in which the genetic mother and the gestating mother are separated from each other. Those who want to use the services of a surrogate mother have to go abroad, for example to Ukraine, Georgia or the United States. Nevertheless, commercial surrogacy is advertised in Germany at ‘Kinderwunschtage’ (‘child wishing days’) and it is possible that children conceived abroad may later be recognized in Germany as an adopted parent’s own.

Commercial surrogacy means that mother and child become the object of a sales contract. It is a dark chapter in human terms and at the same time a lucrative business from which the intermediary companies profit handsomely. Most surrogate mothers come from poor countries; their precarious living situation leads them to sell themselves as childbearing machines. Their only task is to bring a healthy child into the world in accordance with the contract. They are not allowed to develop an intimate relationship with the child, as this would be psychologically unbearable for all concerned. The surrogate mothers protect themselves by separating their body from their person, as if they were two completely distinct spheres. What might this mean for the children created in this way? They, too, are exposed to considerable challenges due to their particular history of origin. The assertion, made with great emphasis, that children have no disadvantages whatsoever as a result of surrogacy is questionable.

Now, for the first time, non-commercial surrogacy is being discussed as part of a major family law reform. The Liberal Party in particular is advocating ‘altruistic’ surrogacy. They argue that it should be legalized because an unfulfilled desire to have children represents a restriction on life that is difficult to bear. As long as there is consent, surrogacy is to be considered an ‘act of charity’. Such an act of compassion, it is argued, should not be denied to anyone: ‘The state [has] no right to prevent this happiness.’

The notion of ‘altruistic’ surrogacy is based on an almost idyllic idea that is as idealized as it is trivialized. Out of friendly, personal motives, a woman carries a child that she does not want as her own, and then gives it away to someone else according to plan, for example to a sister, a friend or someone else. This is supposed to be done charitably, while accepting physical risks and psychological stress. In contrast to commercial surrogacy, it is expected that the pregnant woman will be less internally repulsed by the child and that a bond will be formed that can be continued later. However, this does not solve the fundamental problem of surrogacy. The constitutionally incriminated split-motherhood exists here as well.

The proposed Community of Responsibility could provide a means of overcoming this hurdle of split-motherhood. After all, its aim is for biological ties to lose significance and social relationships to gain greater weight. However, differentiation from commercial surrogacy is not as simple as it may seem at first glance. Costs incurred and income disadvantages are to be compensated, but the limits to this are not defined anywhere. In this respect, ‘altruistic’ surrogacy could become a forerunner for the general liberalisation of surrogacy, even if this is currently disputed.

The German government justifies these significant changes to family policy by arguing that the law must adapt to people’s changing lifestyles and must not stand in the way of either progressive social developments and individual happiness. Yet the changes envisaged have serious consequences. They interfere deeply with the existing cultural order and prompt serious social upheavals. They fundamentally alter the nature of family life and take little account of child welfare.

Professor Bernd Ahrbeck PhD. is Professor of Psychoanalytic Pedagogy at the International Psychoanalytic University in Berlin, Germany. To contact Professor Ahrbeck email: bernd.ahrbeck@ipu-berlin.de.

Professor Marion Felder, PhD. is Deputy Head of Education and Upbringing at Koblenz University of Applied Sciences, Germany. To contact Professor Felder email: felder@hs-koblenz.de.

Photo by Patricia Prudente on Unsplash.