updated19. August 2022, 15:25
federal court rulingJustice forces surrogate mother to adopt child as her own once morest her will
A Swiss couple had their dream child carried by a woman from Georgia. But now the surrogate mother must accept this as her own – the only option left to the intended mother is an adoption process.
It ruled that the surrogate mother alone has parental rights, although the Georgian had ceded them to a Swiss couple in her home country,
20min/Marvin Ancian
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A couple from Aargau had their desired child carried by a surrogate mother in Georgia.
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Although the surrogate mother waives her rights in her home country, she is considered the biological mother in Switzerland.
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The intended parents must now obtain their custody rights via acknowledgment of paternity or adoption.
The judgment of the Federal Supreme Court caused the intended parents from Switzerland and their legal representative to shake their heads. The highest court denied parental rights to a couple who had entered into a surrogacy agreement with a woman from Georgia. This is despite the fact that the couple is entered as the legal holders of parental authority on the birth papers in Georgia. But Swiss law does not allow this: on the one hand, it denies the Swiss couple the recognition as parents and, on the other hand, it forces the surrogate mother to adopt the child as her own – even though she is not genetically related to him. In the present case, the egg cell for fertilization comes from a third party.
The federal court had to deal with the case because the Federal Office of Justice had filed a complaint. Because surrogacy is prohibited in Switzerland, the judges came to the conclusion that parental authority does not lie with the intended parents from Switzerland, but solely with the Georgian surrogate mother. Although she had expressly renounced her parental rights in her home country, she is now being forced by the Swiss authorities to treat the child as her own. According to Swiss law, the woman giving birth is always the legal mother.
“She is in fact obliged to be a forced parent,” says Karin Hochl, lawyer for the Swiss intended parents from Aargau. The court turns the protection of the surrogate mother, which is actually intended by the legislation, into the opposite, “by making the surrogate mother and the child responsible for the claim
of surrogacy by the parents.” In addition, the legislation of Georgia, where the Swiss intended parents are granted parental rights, is ignored.
Intended mother has to start adoption process
The biological father has the option of having his paternity recognized following the child has been entered in the civil status register. However, the only option left to the intended mother is to enjoy parental rights through a stepchild adoption process. Although the Federal Supreme Court writes that the adoption authorities are required to act “quickly, generously and pragmatically” in such cases, according to Hochl, such a procedure can be “time-consuming and costly”. And further: “The situation is even more difficult if the surrogate mother is married, the intended parents separate or the genetic intended father refuses to acknowledge paternity.”
She also complains that even in cases where both parents are genetically related to the child, an adoption process has to be carried out. This means in fact a violation of the prohibition of discrimination. The existing legal situation in Switzerland “hardly finds its equal in the surrounding countries”. Hochl’s conclusion: “It is time to recognize surrogacy as a reality in today’s modern society.”
(trx)