Urteil des Bundesgerichts i.S. Eidgenössisches Justiz- und Polizeidepartement gegen A.B. und Mitb. vom 21. Mai 2015 (BGE 141 III 312, excerpt)
Background
The following recent landmark decision by the Federal Supreme Court discussed below concerns the recognition and recording of foreign birth certificates in the register of civil status in cases of surrogate motherhood. The decision demonstrates how the legal and moral issues surrounding the public policy doctrine change over time, so that the Federal Supreme Court has to continually rule on new developments of a factual and legal nature. It also clearly shows how the Federal Supreme Court holds that not only can a violation of the public policy doctrine be warranted where a principle is universally recognized, but also that it suffices if a principle is violated which in Switzerland’s view should form the basis of every legal system. The possibility referred to in the ruling that a same-sex partner in a registered partnership can adopt his or her same-sex partner’s child has in the meantime been made lawful by legislators.
Summary
Swiss citizens in a registered partnership who live in Switzerland were declared by a California court to be parents of a child conceived with the sperm of one partner and an egg from an anonymous donor carried to term by a surrogate mother. When this was appealed, the Department of Home Affairs of the canton of St. Gallen instructed the Office of Civil Law and Status of the canton of St. Gallen to record the registered partners as fathers of the child. The recording was confirmed by the Cantonal Administrative Court. The Federal Supreme Court upheld the appeal of the Californian ruling regarding the non-genetic father filed by the Federal Department of Justice and Police. In line with the two partners, the solicitor legally representating the child also pleaded that the appeal should be rejected. After recognizing the jurisdiction of the Californian authorities, the Federal Supreme Court examined whether the consequences of recognizing the foreign judgement in Switzerland would be fundamentally incompatible with Swiss laws and ethical values. According to the Federal Supreme Court, a restrictive standard was to be applied in judging the case so as to avoid limping legal relationships. In Switzerland, egg and embryo donation and all forms of surrogate motherhood are constitutionally prohibited. The prohibition of surrogate motherhood is justified on grounds of protecting women against instrumentalization and of protecting the welfare of the child. It is to be avoided that women have to undergo the conflict resulting from psychological attachment to the child and an earlier promise to the intended parents, and the child is to be thereby protected from being degraded to the status of goods orderable from third parties. Potential relaxation of this ban is not currently under discussion in Switzerland. However, the Federal Supreme Court takes into account that non-recognition of a foreign judgement in Switzerland can lead to the parentlessness of a child if domestic adoption fails or is not possible in Switzerland. That situation may violate the fundamental rights of the child, which in turn are protected under the Swiss public policy doctrine. Laws were compared in the ruling and it was found that the courts of other countries which similarly prohibit surrogacy address the issue of recognition of child relationships validly arising abroad in different ways. Lastly, the Federal Supreme Court attached importance to the fact that recognition does not fail because the California ruling establishes a relationship between the child and two legally bound men, as a stepchild adoption by registered partners pronounced abroad does not violate the public policy doctrine, and is also being examined by the Swiss legislature. The manner, however, in which the relationship of the child arose in the case under review has to be taken into account. Circumvention of the law is relevant because the registered partners have no remaining connection to California. They chose surrogacy specifically in order to circumvent the Swiss prohibition, the aim of which is intended to uphold morality, the public interest and human dignity. Denying the public policy doctrine would promote reproductive tourism, rendering the Swiss ban largely ineffective. After careful review of ECtHR case law and the recommendations of the UN Committee on the Rights of the Child, the Federal Supreme Court concluded that neither the ECHR nor the CRC preclude application of the public policy order in the case under review. The stepchild adoption bill presented to Parliament could establish the legal status relationship between the child and the second partner. This possibility for a different ruling was left open if there is no circumvention of the rights of the intended parents, or if the surrogate mother is genetic mother or no intended parent is genetically related to the surrogate child.