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Legal exception Same-sex couple given parental rights to surrogate child

A surrogate mother in California carried a child for two men in Switzerland who were ultimately given parental rights by a Swiss court.

(Keystone)

A Swiss cantonal court has recognised two men as the legal parents of a child born to a surrogate mother in the United States. The decision was reached despite the fact that surrogacy is illegal in Switzerland.

The St Gallen administrative court ruled that the child’s well-being was the most important factor in the case. The two men who were ruled to be the child’s parents had petitioned cantonal authorities for recognition of the child’s California birth certificate. However, the cantonal office was not prepared to recognise the men as fathers.

The child, which was carried in California by a surrogate mother, was created through artificial insemination with an egg from an anonymous donor and sperm from one of the two Swiss fathers.

The birth certificate was issued based on a California court ruling that recognized 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. Therefore, she added, 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 Swiss national registry. However, the Federal Office of Justice (FOJ) appealed to the St Gallen administrative court.

Ultimately, the court partially upheld the FOJ’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 upheld the Department of Home Affairs’ ruling that the two men are the child’s fathers.
The FOJ could still appeal the decision to Switzerland's Federal Court.

Surrogacy is currently banned under Swiss law, as is the adoption of children by same-sex couples.

swissinfo.ch and agencies

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