Surrogacy (GPA)

The principle of ” mater semper certa est “, which means that the mother is always certain, is a pillar of the Swiss legal system and means that surrogate motherhood (GPA) is illegal in Switzerland (art. 119 al. 2 let. d Cst. féd.). Unlike Switzerland, some countries allow GPA, which has led to a form of surrogacy tourism. However, when a couple has recourse to GPA in a foreign country and brings the child back to Switzerland, this can pose legal problems for establishing the parent-child relationship between the intended parents and the child.

Advances in Swiss jurisprudence

The Swiss Federal Supreme Court has issued two recent rulings on the issue of GPA, the first of which (TF, 4A_545/2020) dated February 7, 2022. This case concerns a married couple of intended parents, consisting of a father and a mother, who used a surrogate mother in Georgia for GPA. The twins born of this procedure are the genetic children of both parents.

Once the GPA had been carried out in Georgia, the intended parents found that the filiation links had only been established by a birth certificate, without any administrative or judicial decision. However, when they returned to Switzerland, they found that the intended father was registered as the legal father, while the surrogate mother was registered as the legal mother in the Swiss civil status register.

In its decision, the Federal Court explained that the Georgian birth certificate merely established the existence of a legal parent-child relationship, and did not constitute a foreign decision that could be recognized in Switzerland. Consequently, in the absence of a foreign decision recognized in Switzerland, the Federal Court examined the question of parentage from the angle of applicable law. In this respect, it considered that, as the twins lived in Switzerland and had their habitual residence there, Swiss law was applicable. Thus, it declared that the legal mother was the mother of intent, as GPA is prohibited in Switzerland, and that the legal father was the father of intent, as he was the genetic father of the twins.

The Federal Supreme Court opted for an analysis of parentage under Swiss law and concluded that the principle of “mater semper certa est” is not applicable. mater semper certa est “was to be applied. Consequently, the surrogate mother was to be considered the legal mother of the twins. However, the intended father was already registered as the legal father in the Swiss civil register. The Federal Court clarified that the intended mother could establish a parent-child relationship with the twins through an adoption procedure.

The Federal Supreme Court examined a similar case in a second decision dated July 1, 2022 (TF, 5A_32/2021). In this case, only the father was the biological parent of the child born of a GPA in Georgia. The Court considered whether the surrogacy contract could constitute valid recognition of the child by the father. It concluded that recognition could only be made before the child was conceived, meaning that the surrogacy contract could not serve as recognition of the child by the father. No paternal filiation link was therefore established. The father would then have to acknowledge the child, which would then enable the mother of intent to initiate the adoption procedure for her spouse’s child.

Problems and issues arising from GPA

It is difficult for parents of intent to foresee potential problems when they bring their child born abroad to a surrogate mother back to Switzerland, as the current legal framework for establishing the legal parentage of children born of surrogate motherhood is based on various criteria, such as the nature of the document issued by the country where the surrogate motherhood was carried out, the existence of genetic links between the parents of intent and the child, the surrogate mother’s marital status, and so on.

In its decision of February 7, 2022, the Swiss Federal Supreme Court emphasized the need for the Swiss legislator to introduce a simplified adoption procedure in cases of GPA. In the absence of such a legislative development, law enforcement authorities must take account of the legal challenges posed by GPA to guarantee the fundamental rights of the child, in line with the European Convention on Human Rights.  

In short, the law and jurisprudence will have to adapt to the realities of today’s society. For the time being, however, intended parents face numerous legal uncertainties and difficulties in having their paternity or maternity recognized in Switzerland.