A court in Switzerland has made the historic decision to recognise two men as the legal parents of a child born to a surrogate mom in the United States – despite surrogacy being illegal in the country.
The two men, who live together in a registered partnership, are originally from the St Gallen region of northeast Switzerland. They became fathers through the use of a surrogate mom in California, with the child being conceived through artificial insemination, a donor egg and the sperm of one of the men.
In California, where surrogacy is legal, the child’s birth certificate listed the men as the child’s fathers, recognizing that the surrogate mother and her husband did not wish to exercise their parental rights. However, under Swiss law, the mom and her husband would still normally be considered the parents.
The two men petitioned authorities to be listed as the child’s fathers in the Swiss national registry and were supported by the St Gallen Department of Home Affairs. However, the country’s Federal Office of Justice (FOJ) appealed against the petition to the St Gallen administrative court, prompting the court to make a ruling.
In doing so, the court decided to recognize the Californian birth certificate, ruling that the child’s welfare was the most important priority in the case.
‘The administrative court recognised the American judgment,’ said Karin Hochl, the lawyer who represented the men.
The court stated that a note of the child’s genetic parentage should be recorded on the Swiss birth certificate – partially upholding the FOJ’s complaint – but that the two men could be listed as fathers to the child. The FOJ may still appeal the decision by taking the matter to the Switzerland Federal Court but has not yet announced whether it plans to do so.
Switzerland has a good record for LGBT rights with regards to registered partnerships, an equal age of consent and anti-discrimination laws in relation to employment and the provision of goods and services. However, when it comes to family-building, there remains a ban on same-sex couples adopting, stepchild-adoption, and on lesbians accessing IVF treatment.