30 July 2015

Rhonda Powell

Switzerland’s highest court has refused to recognise the parent-child relationship between a four year old surrogate-born child and one of her two gay fathers. According to the Court, commercial surrogacy is akin to commodification of the child and of the surrogate mother’s body.

The Federal Supreme Court of Switzerland

The child was born to a Californian surrogate mother who conceived by artificial conception using a donated egg and sperm from one of the two Swiss men. The couple were both recorded as the child’s parents on its Californian birth certificate and were granted full parental rights in California. They later applied for legal recognition of their parental status in Switzerland. In denying parental status to the non-genetic father, the Court confirmed Switzerland’s legal position, which does not recognise any form of surrogacy.

As a result, only one of the child’s two fathers is named on the Swiss civil register. This means that the child has no recognised legal relationship with its other father, with implications for inheritance rights, and for ongoing parental rights and responsibilities and child support. Swiss law, like New Zealand law, deems the surrogate mother and her partner to be the child’s parents, regardless of the circumstances. Homosexual couples are also not allowed to adopt children in Switzerland. (In New Zealand homosexual couples can adopt children.)

Whether or not surrogacy does amount to commodification, it is hard to see how denying legal recognition of an existing parent-child relationship in Switzerland will serve to protect the corporeal rights of the Californian woman who gave birth to the child four years previously. It is equally unclear how this will ‘undo’ any perceived commodification of the child.

In 2014, the European Court of Human Rights ruled that failing to accord surrogate-born children full legal recognition is a breach of their right to respect for family life protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This was because of the importance to the child’s wellbeing of recognising the parental relationship with both parents (not just the parent with a genetic connection).

The same reasoning should apply to the Swiss case – that the child’s right to respect for family life is sufficiently important that Switzerland’s public policy objectives must take a back seat.

It is one thing to create a regulatory regime that discourages surrogacy. It is another to deny a parent-child relationship for a child who has already been living in the custody of the parent for four years.

This case is yet another reminder of the need for comprehensive and cohesive regulation of surrogacy. With increases in the number of couples commissioning surrogacy internationally, it is imperative that national and international laws are developed to ensure that the rights of the child, the surrogate mother and the intending parents are protected.