Switzerland, inter-country surrogacy and public policy

On 21 May 2015 the Swiss Federal Court (1) refused to register a male couple - who are in a civil partnership and living in Saint-Gallen, Switzerland - as the legal fathers of a child born following an inter-country surrogacy arrangement.

The background to this case is that the child was born in California to a gestational surrogate, with one of the intending fathers providing the sperm, which was used to fertilise an egg from an anonymous donor. With the consent of the surrogate, and following a judgment of a Californian court, the intending fathers were named as the legal parents and their names were recorded in the child's US birth certificate. The family returned to Switzerland and took steps to be recognised as the child's legal parents.

A court in Saint-Gallen held, in broad terms, that recognition of the joint legal parentage was in the best interests of the child (2). That court stated that to hold otherwise would leave the child with 'limping' legal parentage, particularly as the second intending father would be unable to establish his legal paternity. Echoing in many ways a decision of the Supreme Court of Germany (3), the court in Saint-Gallen held that non-recognition would have negative long-term consequences for the child. Moreover, the court held that the best interests of the child also required that the genetic origins of the child, as well as details of the surrogate, must be recorded in the civil register.

The Federal Justice Department submitted an appeal on 26 September 2015, challenging the registration of the second parent as father. The Federal Court held that the parentage of the second parent established in California could not be recognised in Switzerland - only the intended genetic father and the surrogate would be registered as the child's parents in the Swiss civil registry. There were a number of reasons for this conclusion. Surrogacy and the use of medically assisted reproduction in the context of surrogacy are prohibited in Switzerland, and second-parent adoption is currently restricted to (heterosexual) married couples. For the Federal Court, recognition of a parental status established in California in circumstances where there was no other connection with the USA (such as residence or American nationality of one of the intending fathers) would be 'fundamentally incompatible with Swiss legal and ethical values ([and contrary to] public policy)' (1) and unlawful.

There is a great deal of conflicting information in the media about surrogacy. It should be stressed that this decision was not about whether or not the Swiss prohibition of surrogacy was lawful. There are some things that ought to be decided by a democratically elected parliament rather than by the courts. Instead, the Federal Court had to consider a classic private international law matter - that is, whether the parental status established abroad could be recognised in Switzerland. An important concept for that analysis is the notion of 'public policy'.

With respect to surrogacy, the protection of health or morals, the prevention of crime, or the protection of rights and freedoms of others (in particular the child and the surrogate) there are legitimate broad objectives in public-policy terms for states in specific circumstances to restrict or deny the consequences of a surrogacy arrangement. Yet, returning to the facts of this decision, there is nothing to indicate that these important public-policy issues were at play. Moreover, any such restrictions concerning the identity of an individual (here the child now aged 4) should be proportional to the objective aimed at and acceptable in an open, free, tolerant and pluralistic society. The lawfulness of the arrangements in the state in which this child was born and the informed consent of the surrogate are arguably very relevant to this proportionality exercise. Seen in this light, non-recognition of the parental status could be seen, to paraphrase the European Court of Human Rights, to 'fly in the face of both established fact and the wishes of those concerned without actually benefiting anyone' (4).

Where does that leave us? An important conclusion is that the Federal Court leaves the door ajar to recognition and, as such, it cannot be assumed that legal parentage established abroad following a surrogacy arrangement violates Swiss public policy. This means that Swiss courts and authorities may - albeit in undefined circumstances - recognise a foreign decision on parentage or a birth certificate. How this is applied in practice is yet to be seen, and it is questionable whether in this delicate matter the best interests of the child are served by solutions on a case-by-case basis. The lack of a legal relationship between the child and a second intending parent or intending mother creates very real disadvantages and uncertainties regarding inheritance rights, child custody, parental responsibility, and other day-to-day parental duties. The extent to which a child's family unit enjoys legal recognition has a considerable impact on that child's day-to-day and longer term enjoyment of his or her rights.

It is now for this family to decide whether to make an application to the European Court of Human Rights on the basis of a violation of their Article 8 ECHR right to respect for their private and family life. And it is now for the Swiss Parliament to find long-term solutions. A balance is needed, placing the best interests of the child as a primary consideration, but also respecting the balance that must be achieved between children, intending parents, the surrogate, gamete providers and the state. Listening to the experiences and views of those most affected in these very real family units is a crucial part of any thoughtful responsive process of law and policy reform.