Author: Lawyer Enrico Germano
The issue is highly topical in Europe and the political, legal and ethical debate is very heated in Italy, where the Minister for Equal Opportunities and the Family, Eugenia Roccella, recently defined surrogacy as « a market for children. It is commodification and slavery of the female body »’ . The Italian President of the Chamber’s Culture Commission, Federico Mollicone, went further, declaring that « surrogacy is a more serious crime than paedophilia »’ .
Surrogacy is prohibited in Switzerland, but this has not prevented several couples in recent years from finding women abroad who are willing to carry a child for them. The highest judicial authority in Switzerland, in a decision published on 19 August 2022, refused to recognise a civil status certificate issued abroad that created the link between a sperm donor father and a would-be mother: « the Federal Supreme Court ruled that it is up to Swiss law to decide who is to recognize parental authority over a child born abroad to a surrogate mother »’. In this case, under the laws of the state of Georgia, where the child was born, the parents are officially the Swiss parents, but under Swiss law, the Swiss mother cannot be considered the legal mother of the child. In Switzerland, in fact, the legal mother is only the woman who gives birth to the child.
This ruling in German language from the Federal Supreme Court made it clear in recital 4 that the Caucasian birth certificate does not constitute a foreign decision (foreign decisions concerning the establishment or contestation of parentage are recognized in Switzerland if pronounced in the child’s state of habitual residence or origin or in a parent’s state of domicile or origin) within the meaning of Art. 70 of the Private International Law Act (LDIP): ” When the intended parents (Wunscheltern), domiciled in Switzerland, resort to surrogacy (Leihmutterschaft) in Georgia and Swiss filiation law applies, the filiation with the surrogate mother (Leihmutter) is established by law at the time of the child’s birth (recital 5 of the judgment). The intending father (Wunschvater), who in this case is also the sperm donor, may establish filiation by recognizing the child, while the intending mother (Wunschmutter) has the option of adopting the child of her spouse” .
This decision of the Federal Supreme Court of 1 July 2022 had been preceded by another, essentially identical decision of 7 February 2022, in which the same court had examined the rules applicable to the transcription in the civil register and the recognition of a foreign decision in matters of filiation and had determined the applicable law, with reference to private international law. The Federal Supreme Court had ruled that foreign birth certificates based on surrogacy were not recognized in Switzerland. Instead, the question of who the child’s parents are was judged according to Swiss law. Therefore, the surrogate mother, also a Georgian national domiciled in Georgia, who gives birth is considered in Switzerland to be the legal mother of the child. The parent-child relationship with the intended father must be established by an acknowledgement of paternity, which presupposes that the surrogate mother is not married. The intended mother, whether or not she is genetically related, must adopt the child in Switzerland. Until this intra-familial adoption of the stepchild by the intended genetic mother, the legal mother remains the surrogate mother, who has sole parental authority and the child receives her name upon registration.
1 Agenzia Ansa.it del 20 marzo 2023
2 Agenzia Ansa.it del 20 marzo 2023
4 Rsi, radio televisione svizzera italiana, del 19 agosto 2022
5 Tio, Ticino online, del 19 agosto 2022
6 Decision of the Federal Supreme Court, 5A_32/2021 dated 1.07.2022, 148 III 384; Auszug aus dem Urteil der II. zivilrechtlichen Abteilung i.S. Eidgenössisches Justiz- und Polizeidepartement EJPD, Bundesamt für Justiz BJ gegen A.A. und Mitb. (Beschwerde in Zivilsachen)
7 Decision of the Federal Supreme Court, 5A_545/2020 dated 7.02.222
8 Université de Neuchâtel, unine, Sandra Hotz et Jérôme saint-Phor, reconnaissance de la filiation suite au recours à la maternité de substitution, arrêt du 7 février 2022