Surrogacy

In general

The “mater semper certa est” principle, implying that the mother is always certain, is a fundamental principle of the Swiss legal system. The Swiss Constitution therefore prohibits surrogate motherhood (GPA) (article 119 paragraph 2 letter d Cst).

Unlike Switzerland, some countries allow this procedure, so surrogacy tourism exists. When couples resort to surrogacy in foreign countries and return to Switzerland with their child, a series of legal twists and turns ensue in order to establish the parent-child relationship between the intended parents and the child.

Advances in Swiss jurisprudence

The Swiss Federal Supreme Court has recently handed down two rulings on this subject, both of which are worthy of mention.

The first decision of the Swiss Federal Supreme Court (TF, 4A_545/2020), dated February 7, 2022, concerns the case of two married parents of intent, a father and a mother, who used a surrogate mother and carried out a GPA procedure in Georgia. The two intentional parents are the genetic parents of the twins born of this process.

In Georgia, the intended parents’ filiation links were simply recognized by the birth certificate, without any administrative or judicial decision. On their return to Switzerland, the intended parents found that in the Swiss civil registry the intended father was listed as the legal father, but that the legal mother was the surrogate mother.

In its decision, the Federal Court stated that the Georgian birth certificate merely established a parent-child relationship existing by law, and did not constitute a foreign decision that could be recognized in Switzerland.

In the absence of a decision that could be recognized, the Federal Court examined parentage from the angle of applicable law. In this respect, it determined that, insofar as the twins lived in Switzerland and had their habitual residence there, Swiss law applied.

Under Swiss law, the principle of “ mater semper certa est ”, implying that the mother who carried the child is always certain, was to apply. Consequently, according to this well-established principle, the surrogate mother who gave birth to the twins was to be considered their legal mother.

Finally, concerning the mother of intention, the Federal Court clarified that she could establish a parent-child relationship through an adoption procedure.

In a second decision of July^1, 2022 (TF, 5A_32/2021), the Federal Court dealt with a similar case, in which only the father was the genetic parent of the child born of GPA in Georgia.

The question of whether the surrogacy contract constituted valid recognition of the children by the father was examined, and it was held that recognition could not be made before the child was conceived. Thus, the surrogacy contract did not constitute recognition of the child by the father.

As a result, no paternal filiation link had been established. It was therefore necessary for the father to acknowledge the child, which would then enable the mother of intention to start the adoption procedure for her spouse’s child.

Problems and issues arising from GPA

Under the current Swiss legal system, the establishment of legal parent-child relationships for children born of surrogate motherhood depends on criteria such as the type of act issued by the country in which the surrogacy is carried out (a birth certificate, a decision or a formative act), whether or not there are genetic links between the intended parents and the child, whether or not the surrogate mother is married, and so on. As a result, it is very difficult for intended parents to anticipate the problems they will encounter in Switzerland when they return with a child born to a surrogate mother abroad.

In its ruling of February 7, 2022, the Federal Court called on the legislator to introduce a simplified adoption procedure for cases of GPA.

In the meantime, the authorities applying the law must address the legal issues raised by GPA in order to best respect the fundamental rights of the child conferred by the European Convention on Human Rights.

In conclusion, the law and/or jurisprudence will have to evolve to adapt to the realities of our society.