Legal wrangles continue over surrogate child

The issue will be decided in the Federal Court in Lausanne Keystone

The Federal Office of Justice says it is going to appeal a cantonal court’s decision to recognise two men as legal parents of a child born to a surrogate mother in the United States. Surrogacy is illegal in Switzerland.

The justice office is calling for the California-issued birth certificate, which recognises the men as the fathers, to be ruled invalid, it said in a statement on Friday.External link The appeal has been referred to the Federal Court in Lausanne.

Only one of the two men, who was the sperm donor and therefore the child’s biological father, could be added to Switzerland’s civil register, continued the statement.

“The federal constitution guarantees everybody the right to know about their origins,” it added.  Thus the surrogate mother and her husband, who, legally speaking, is considered the father of the child at the birth, should also be added in, as should the fact that the egg was from an anonymous donor, said the office.

Swiss vs American law

The St Gallen administrative court had ruled in favour of recognising the two men as the legal parents in August, arguing that the child’s well-being was the most important factor in the case. These two men had petitioned cantonal authorities for recognition of the child’s California birth certificate. However, the St Gallen cantonal Office for Citizenship and Civil Status was not prepared to recognise the men as fathers.

The birth certificate was issued based on a California court ruling that recognised that the surrogate mother and her husband do not want to exercise their parental rights or fulfill their parental responsibilities.

The St Gallen court based its decision on the fact that under American law, the two men were legally considered to be the child’s parents. Under Swiss law, the American surrogate mother and her husband would normally be considered the legal parents.

“The administrative court recognised the American judgment [in this case],” said Karin Hochl , the lawyer who represented the two men, after that ruling. So no acknowledgement of paternity or adoption from the birth mother was required.

In the case, the St Gallen Department of Home Affairs supported the men’s appeal and ordered that they be registered as the child’s fathers in the civil register. However, the Federal Office of Justice appealed to the St Gallen administrative court.

Ultimately, the court partially upheld the justice office’s complaint in that it required that the child’s genetic parentage be recorded in the register in addition to the legal parent-child relationship. However, it also ruled that two men were considered the child’s fathers.Surrogacy is currently banned under Swiss law, as is the adoption of children by same-sex couples.