Surrogacy and Legal Custody in Switzerland

Victoria Ferrara

6/12/15

As adoption and surrogacy continue to expand into a vast international market, countries, especially in Europe, have been forced to create policies that confront the relatively young concepts of gay and non-biological parenting. Recently in Switzerland, a male couple was denied joint legal custody by the Swiss Federal Court over their child who was born through an "inter-country surrogacy arrangement".

The gestational surrogacy took place in California and with the consent of the surrogate, the intended parents were successfully named the legal parents of the child by a Californian court. The parents, who are in a legal civil partnership, live in Saint-Gallen, Switzerland. The local court in Saint-Gallen "recognized" that joint legal parentage was "in the best interest of the child" (Wells-Greco). The court said that non-recognition of the second father would bring long-term consequences to the child. Following this ruling, the Federal Justice Department in Switzerland took hold of the case by challenging the registration of the second parent as a father. The federal court argued that they couldn't recognize the joint custody that was formed in California and that only the genetic father and surrogate could be registered as the child's parents.

The Swiss Federal Justice Department based this decision on two points of policy. The first was that surrogacy and the use of medically assisted reproduction are prohibited in Switzerland. The Federal court did not want to recognize the rulings made in California and Saint-Gallen because they currently have national policies against surrogacy and parents having children through medically assisted reproduction. The second argument was that Switzerland has a policy barring same-sex couples from adopting "second parent" born children. The Federal court currently states that they cannot recognize the parental ruling in California because there is no other connection to the United States than the child being born there. Neither father has any legal or nationality ties to the U.S. The court states that it would be "fundamentally incompatible with Swiss legal and ethical values and unlawful" to grant joint fatherhood to the child (Wells-Greco). Even though these two men were recognized as fathers of the child in both California and local Swiss courts, the Swiss Federal court is unable to adapt their policy to recognize a male homosexual couple as joint fathers. 

In the U.S, we have seen a huge shift in American culture in accepting gay and lesbian couples and the concepts of adoption and medically assisted reproduction. While it differs state to state, more and more states are adopting policies that legally recognize homosexual couples, and in some cases allow them a completely normal marriage rather than a civil union or other kind agreement. This gradual shift in belief and culture in America is different from many countries, especially in regards to surrogacy and homosexual adoption. In Switzerland, while simple marriage and custody cases are being brought to the Supreme Court every year, the Federal Court won't even recognize two different court rulings that grant legal fatherhood to two fathers of a child that they adopted in America. Even though gay rights and gay marriage have made significant global progress in cultures across the world, it is the federal government of each country that institutes a true change in culture and belief. While the majority of the public in Switzerland may have come to terms with the concept of gay marriage and adoption, if national policy, and even foreign policy, won't recognize these shifts in culture, the true culture of that country has not changed.

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