The principle “mater semper certa est,” which means the mother is always certain, is a fundamental tenet of the Swiss legal system. As such, the Swiss Constitution prohibits surrogacy (GPA) (Article 119, Paragraph 2, Letter d Cst).
Unlike Switzerland, some countries permit this practice, leading to what is known as surrogacy tourism. Consequently, when couples use surrogacy services abroad and return to Switzerland with the child, various legal challenges arise to establish the parentage of the intended parents and the child.
Advances in swiss jurisprudence
The Federal Supreme Court has recently issued two decisions on this topic, which are noteworthy.
The first decision (TF, 4A_545/2020), dated February 7, 2022, involves a case where two married intended parents, a father and a mother, used a surrogate and engaged in surrogacy in Georgia. Both intended parents are the genetic parents of the twins born through this process.
In Georgia, the parentage of the intended parents was simply recognized by the birth certificate, without any administrative or judicial decision. After returning to Switzerland, the intended parents found that in the Swiss civil registry, the intended father was listed as the legal father, but the legal mother was the surrogate.
In its decision, the Federal Supreme Court clarified that the Georgian birth certificate merely established an existing parentage under the law and did not constitute a foreign decision that could be recognized in Switzerland.
Thus, in the absence of a decision subject to recognition, the Federal Supreme Court examined parentage under applicable law. It determined that since the twins lived in Switzerland and had their habitual residence there, Swiss law applied.
Under Swiss law, the principle “mater semper certa est,” meaning the mother who gave birth is always certain, had to be applied. Consequently, according to this well-established principle, the surrogate, having given birth to the twins, was considered their legal mother.
Finally, concerning the intended mother, the Federal Supreme Court specified that she could establish a parental relationship through an adoption process.
In a second decision dated July 1, 2022 (TF, 5A_32/2021), the Federal Supreme Court considered a similar case where only the father was the genetic parent of a child born through surrogacy in Georgia.
The question of whether the surrogacy contract constituted a valid recognition of the child by the father was examined, and it was concluded that recognition could not occur before the child’s conception. Thus, the surrogacy contract did not equate to the father’s recognition of the child.
As a result, no paternal parentage was established. Therefore, the father needed to formally recognize the child, which would then allow the intended mother to initiate the process of adopting her spouse’s child.
Issues and challenges arising from surrogacy
Under the current Swiss legal system, the establishment of legal parentage for children born through surrogacy depends on factors such as the type of document issued by the country where the surrogacy took place (a birth certificate, a decision, or a formative act), the existence of genetic links between the intended parents and the child, whether the surrogate mother is married, 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 to a surrogate abroad.
In its ruling on February 7, 2022, the Federal Supreme Court urged the legislature to establish a simplified adoption procedure for surrogacy cases.
In the meantime, the authorities applying the law must address the legal challenges posed by surrogacy to best respect the fundamental rights of the child as conferred by the European Convention on Human Rights.
In conclusion, the law and/or jurisprudence will need to evolve to adapt to the realities of our society.
