The future of egg donation in Switzerland 

Forty years after the practice of egg donation was first shown to be possible (see BioNews 1236), Switzerland is considering allowing and regulating the practice there.

The Swiss approach to reproductive medicine remains quite restrictive by international standards, but some prohibitions have been lifted in recent years. A revised version of Article 119 of the Federal Constitution approved in 2015, followed by a revision of the Reproductive Medicine Act in 2017, made pre-implantation diagnostics, embryo freezing, and elective single embryo transfer possible. However, the ban on egg donation in the Reproductive Medicine Act, although highly debated since its inception, remains in place.

The legislation's main concern at the time was the split between genetic motherhood and biological motherhood resulting from egg donation, which was perceived to harm the child's welfare. The same concern did not apply to sperm donation for two reasons. First, the relationship between the child and the non-genetic birthing mother was considered more intense than the relationship between the child and the intended non-genetic father, and therefore more likely to trigger emotional conflicts in the child. Second, egg donation was seen as 'unnatural', creating families that would not naturally occur, unlike sperm donation. On the contrary, split fatherhood due to sperm donation was considered to mirror 'natural' situations where the birth giver's partner is not necessarily the child's genetic father. Additionally, there was a concern about protecting the health of donors, who could be exploited.

After a decade of unsuccessful political attempts to lift the ban, in 2022, the National Council (lower chamber) and the Council of States (upper house) separately approved a motion instructing the Federal Council to define the necessary legal framework to make egg donation possible for married couples where the woman is infertile. The reason lies in the unacceptable unequal treatment caused by the current ban. As specified in the motion, banning egg donation leads to unjustified discrimination against couples where the woman is infertile compared to couples where the man is infertile. As things stand, infertile women in Switzerland have to resort to reproductive care abroad to fulfil their desire to have children. In contrast, married couples in which the man is infertile can opt for sperm donation, which is to some extent covered by health insurance.

Beyond political will, Swiss society also appears ready for egg donation to be allowed. Egg donation achieved a high level of approval among the population in 2017, with 61 percent of respondents in a survey addressing 800 respondents between 18 and 64 years old, favouring the practice. Support seems to have grown over the last few years. According to the recent CHARLS survey, the first representative study on assisted reproduction in Switzerland, 73 percent of the Swiss population agree that egg donation should be permitted since sperm donation already is, while only 13 percent disagree. While egg donation is perceived as slightly less morally justifiable than sperm donation, half of those surveyed (5283 people in total) still consider egg donation to be morally justifiable to very justifiable.

Times seem therefore ripe for the ban to be lifted. Yet, how the regulation will look remains uncertain. One critical aspect concerns the potential beneficiaries of egg donation. The motion talks about married couples where the woman is infertile, aligning with the current provision on sperm donation, which reserves access to sperm donation only for married couples (Article 3(3), Reproductive Medicine Act). The National Advisory Commission on Biomedical Ethics has diverged from this stance, advocating unanimously for extending egg donation eligibility to both different-sex couples, regardless of marital status, and same-sex couples.

While the primacy of the traditional family continues to achieve wide support within the Swiss legal system, it's noteworthy to recall that, following the introduction of same-sex marriage on 1 July 2022, married lesbian couples have access to sperm donation. The wife of the gestational parent is automatically recognised as the other legal parent if the child was conceived by sperm donation. Therefore, also considering the ongoing discussions on a potential legal reform in the field of filiation law, addressing egg donation in isolation and regulating it solely based on the archetype of the heterosexual married family would not only further discrimination against unmarried couples and single persons, but also be short-sighted.

The compensation of donors, or lack thereof, is another aspect which tends to be highly contentious when regulating gamete donation. In Switzerland, while sperm donation is mandated to be altruistic, donors are typically reimbursed for expenses incurred, in practice receiving CHF 100–200 (£88-176) per session or lump sums ranging between CHF 1500–3000 (£1320-2643), alongside indirect benefits through free health examinations (figures from 2019).

Setting an appropriate compensation figure for egg donation is challenging, as demonstrated by debate in the UK (see BioNews 1238), where plans to increase the rate of compensation for sperm and egg donors were recently made (see BioNews 1232). Also beyond the UK, concerns have been raised that high levels of compensation may act as an inducement to donors who would not otherwise offer their eggs. At the same time, the extent to which financial considerations influence the decision to donate is complex to trace.

Ensuring that both donors and recipients receive comprehensive information about the possible risks associated with egg donation, with measures in place to protect their reproductive autonomy and wellbeing, is paramount. This, combined with the challenge inherent in setting an appropriate compensation figure, however, should not lead to sidelining the issue of compensation as inherently supportive of commercialisation or donors' exploitation in current debates. Rather, compensation should be addressed as a fundamental and even a priori question: it should not be seen merely as a means to address a (potential) shortage of eggs, but as an acknowledgement of the risks and commitment undertaken by donors.

Beneficiaries and compensation are just two of the many questions the Swiss legislator has to address in view of regulating egg donation. Given its delay, Switzerland can draw on the experiences of other countries that have adopted various legal approaches, each with its own successes and challenges. At this stage, what is to be hoped is that the Swiss debate will embrace egg donation in all its complexity and nuances, and as part of a broader effort to rethink the regulation of reproductive medicine and contemporary families.