The fundamental principle of the Swiss legal order that “mater semper certa est,” meaning the mother is always certain, implies that surrogacy (GPA) is prohibited in Switzerland (Art. 119 para. 2 let. d of the Federal Constitution). Unlike Switzerland, some countries allow surrogacy, leading to surrogate maternity tourism. When couples use surrogacy services in foreign countries and return to Switzerland with the child, legal difficulties arise in establishing the filiation links between the intended parents and the child.
Advancements in Swiss jurisprudence
Two recent Federal Tribunal rulings on the issue of GPA are worth mentioning. The first ruling (TF, 4A_545/2020) made on February 7, 2022, concerns a married couple of intended parents, a father and a mother, who used a surrogate mother in Georgia for GPA. The twins born from this process are the genetic children of both intended parents.
After undergoing GPA in Georgia, the intended parents found that the filiation links had been simply recognized by the birth certificate, without any administrative or judicial decision. However, upon their return to Switzerland, they noticed that the intended father was registered as the legal father, while the legal mother was the surrogate mother in the Swiss civil registry.
The Federal Tribunal explained in its decision that the Georgian birth certificate only established the existence of a filiation link existing under the law and was not a foreign decision that could be recognized in Switzerland. Therefore, in the absence of a foreign decision that could be recognized, the Federal Tribunal examined the filiation issue under the applicable law. It found that since the twins lived in Switzerland and had their habitual residence there, Swiss law was applicable.
The Federal Tribunal examined the filiation issue under Swiss law and concluded that the principle “mater semper certa est” had to be applied, meaning the surrogate mother had to be considered the legal mother of the twins. The intended father was already registered as the legal father in the Swiss civil registry. The Federal Tribunal specified that the intended mother could establish a filiation link with the twins through an adoption procedure.
The Federal Tribunal examined a similar case in a second decision on July 1, 2022 (TF, 5A_32/2021), where only the father was the biological parent of the child born from GPA in Georgia. The issue of whether the surrogacy contract could constitute a valid recognition of the children by the father was examined, and the Tribunal held that recognition could not be made before the conception of the child. Therefore, the surrogacy contract did not amount to recognition of the child by the father, meaning no paternal filiation link was established. 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 spouse’s child.
Issues and challenges arising from GPA
The current legal framework in Switzerland to establish the legal filiation links of children born from GPA is based on various criteria such as the nature of the act issued by the country where the surrogacy was carried out (birth certificate, decision or formative act), the existence of genetic links between the intended parents and the child, the marital status of the surrogate mother, etc. This makes it difficult for intended parents to foresee the problems they might encounter in Switzerland when they bring back their child born abroad from a surrogate mother.
In its decision of February 7, 2022, the Federal Tribunal called on the legislator to establish a simplified procedure for adoption in cases of GPA. Pending this legislative development, authorities responsible for the application of the law must take into account the legal difficulties related to GPA in order to guarantee the fundamental rights of the child, as defined by the European Convention on Human Rights.
In conclusion, the law and jurisprudence will need to evolve to adapt to the realities of our society. For now, intended parents must face many uncertainties and legal difficulties if they seek to have their paternity/maternity recognized in Switzerland.