The principle “mater semper certa est“, implying that the mother is always certain, is a fundamental principle of Swiss legal order. Therefore, the Swiss Constitution prohibits surrogacy (article 119 paragraph 2 letter d Cst).
Unlike Switzerland, some countries allow this process, resulting in surrogate motherhood tourism. Thus, when couples resort to surrogacy in foreign countries and return to Switzerland with the child, legal adventures ensue to establish the filiation links between the intended parents and the child.
Advancements in Swiss jurisprudence
The Federal Court recently made two decisions in the context of this topic, which are worth highlighting.
The first decision of the Federal Court (TF, 4A_545/2020), dated February 7, 2022, concerns the case of two married intended parents, a father and a mother, who used a surrogate mother and practiced surrogacy in Georgia. The two intended parents are the genetic parents of the twins born from this process.
In Georgia, the filiation links of the intended parents were simply recognized by the birth certificate, without administrative or judicial decision. After their return to Switzerland, the intended parents found that in the Swiss civil status register the intended father was registered as the legal father, but the legal mother was the surrogate mother.
In its decision, the Federal Court clarified that the Georgian birth certificate only attested to an existing filiation link by law and did not constitute a foreign decision that could be recognized in Switzerland.
Thus, in the absence of a decision that could be recognized, the Federal Court examined the filiation under the applicable law. In this regard, it determined that, as the twins lived in Switzerland and had their habitual residence there, Swiss law applied.
Under Swiss law, the principle “mater semper certa est“, implying that the mother who carried the child is always certain, had to apply. Consequently, according to this well-established principle, the surrogate mother, having given birth to the twins, had to be considered as their legal mother.
Finally, regarding the intended mother, the Federal Court specified that she could establish a filiation link through an adoption procedure.
In a second decision dated July 1, 2022 (TF, 5A_32/2021), the Federal Court looked into a similar case, where only the father was the genetic parent of the child born from the surrogacy in Georgia.
The question of whether the surrogacy contract constituted a valid recognition of the children by the father was examined, and it was determined that recognition could not be made before the conception of the child. Thus, the surrogacy contract did not count as recognition of the child by the father.
It followed that no paternal filiation link was established. Therefore, the father had to proceed with the recognition of the child, which would then allow the intended mother to start the adoption procedure of her partner’s child.
Issues and challenges arising from surrogacy
Under the current Swiss legal order, the establishment of legal filiation links of children born from surrogacy depends on criteria such as the type of act issued by the country in which the surrogate motherhood is carried out (a birth certificate, a decision, or a formative act), the existence or absence of genetic links between the intended parents and the child, whether the surrogate mother is married or not, etc. Thus, it is very difficult for intended parents to anticipate the issues they will encounter in Switzerland when they return with a child born of a surrogate mother abroad.
In its decision of February 7, 2022, the Federal Court called on the legislator to establish a simplified adoption procedure for surrogacy cases.
In the meantime, authorities applying the law must address the legal issues posed by surrogacy 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 be called upon to evolve to adapt to the realities of our society.