In 2011, two Swiss men who lived in the US registered their partnership. Two months later, they had a child through a surrogate mother in California, and according to the law were both recognized as fathers of the baby. But once back in Switzerland in 2014, despite an initial acknowledgment of their status, the federal court ruled against the status they acquired in the US.
It’s not the gender of the two to be the issue—or at least, not directly. Switzerland recognizes same-sex unions, but surrogacy is illegal and so is the adoption of children by same-sex couples. The country has the right not to recognize foreign documents incompatible with the local law, as it’s the case with a surrogacy birth certificate.
For the court, only one of the men can be the legal father—specifically the one who has biological ties to the baby, who was conceived with the sperm of one of the two men and an anonymous donor’s egg.
In explaining the ruling, which generated outrage amongst the gay community both inside and outside the country, the Swiss court has stated that the principles informing the decision weren’t informed by considerations on same-sex parenting, but rather by an ethical stand on surrogacy itself—as violating of the rights of the surrogate mothers and of the children. The court explained:
…a child must be protected from being downgraded to a commodity which can be ordered from a third party.
The country has faced an insurgence of children obtained through surrogacy services, particularly from Georgia, where services are offered for as little as €15,000 ($16,000). “According to Swiss civil law,” said the court, according to Swissinfo, “a pregnant woman cannot actively abandon her rights regarding the child before it is born”—and accepting the surrogacy would be a commercialization of the woman’s body and wouldn’t guarantee enough protection of her rights.
Highlighting that the two men knowingly bypassed the Swiss law, the court said recognizing their status would encourage “reproductive tourism.”
The Swiss law on assisted reproduction is rather restrictive and only allows IVF that doesn’t require egg or sperm donation, contrary to the country’s fame for liberal medical practices—Switzerland notoriously allows euthanasia, or “assisted dying.”
The case debated by the court, however, presents a further complication compared to what would be faced by an heterosexual couple: since same-sex adoption is not allowed in Switzerland, the “other father” cannot adopt the child had through surrogacy.