‘A child cannot have two fathers’, rules Federal Court

The couple's lawyer says the Federal Court decision ignores the interests of the child Keystone

A Swiss male couple who had a child with a surrogate woman in California cannot both be recognised as the child’s legal father, the Federal Court has ruled. The couple’s lawyer and family associations have condemned the decision.

Switzerland’s highest court on Thursday annulled a decision which allowed two men in a registered partnership to both be considered the father of a child born in 2011 via assisted reproduction.

The child, who is now four years old, was born in California to a surrogate mother as a result of artificial insemination. The sperm of one of the men was used with the eggs of an anonymous donor.

A US court decision had validated the parental link between the child and the two men from canton St Gallen, who entered into a registered partnership two months before the child was born. Last year the St Gallen cantonal administrative court had confirmed the US decision.

However, the Swiss justice office, which had appealed, had stated that only the genetic link between the child and the father who gave his sperm may be legally recognised. The Federal Court confirmed this position, stating that the paternity of the father who has no biological link to the child is unlawful. The name of the biological father will remain written in the civil register.

“This decision by the Federal Court ignores the interests of the child and the living reality of both men, who have been living together as a family since 2011,” said the couple’s lawyer Karin Hochl on Thursday.

She added that the verdict damages the child’s fundamental welfare and prevents legal safeguards, especially in the event of the couple separating or the biological father dying.

‘Genetic relationship’

The two men had stood by the child’s Californian birth certificate, which had referred to a legal decision whereby the surrogate mother and her husband did not wish to exercise parental rights or assume their parental responsibilities.

“Legal parenthood in Switzerland has never necessarily required a genetic relationship to the child,” said Hochl.

The association Rainbow Families, which represents the interests of parents where at least one member is gay, lesbian or bisexual, fears that the family faces significant legal disadvantages as a result of the decision.

In a statement it said a growing number of couples were resorting to assisted reproduction in Switzerland and abroad in order to have children. This reality should be taken into account and they should be offered an acceptable legal framework which gives all people involved an adequate protection, the group added.

“A chance was missed to bring the law and actual living conditions in line with each other,” said Hochl.