A child born through surrogacy from a same-sex male couple. The refusal to recognize a parent-child relationship violated the privacy of the latter
JUDGMENT
D.Β. and others v. Switzerland 22.11.2022 (app. no. 58817/15 and 58252/15)
SUMMARY
The case concerned a same-sex couple who were registered partners and had entered into a
gestational surrogacy contract in the United States under which the third applicant had been born.
The applicants complained in particular that the Swiss authorities had refused to recognise the
parent-child relationship established by a US court between the intended father (the first applicant)
and the child born through surrogacy (the third applicant). The Swiss authorities had recognised the
parent-child relationship between the genetic father (the second applicant) and the child.
The Court stated that the chief feature which distinguished the case from those it had decided before
was that the first two applicants were a same-sex couple in a registered partnership.
Regarding the third applicant, the Court noted that, at the time he was born, domestic law had
afforded the applicants no possibility of recognition of the parent-child relationship between the
intended parent (the first applicant) and the child. Adoption had been open to married couples only,
to the exclusion of those in registered partnerships. Not until 1 January 2018 had it become
possible to adopt the child of a registered partner. Thus, for nearly seven years and eight months,
the applicants had had no possibility of securing definitive recognition of the parent-child
relationship. The Court therefore held that for the Swiss authorities to withhold recognition of the
lawfully issued foreign birth certificate in so far as it concerned the parent-child relationship
between the intended father (the first applicant) and the child born through surrogacy in the United
States, without providing for alternative means of recognising that relationship, had not been in
the best interests of the child. In other words the general and absolute impossibility, for a
significant period of time, of obtaining recognition of the relationship between the child and the first
applicant had amounted to a disproportionate interference with the third applicant’s right to respect
for private life under Article 8. Switzerland had therefore overstepped its margin of appreciation by
not making timely legislative provision for such a possibility.
Regarding the first and second applicants, the Court first observed that the surrogacy arrangement
which they had used to start a family had been contrary to Swiss public policy. It went on to hold that
the practical difficulties they might encounter in their family life in the absence of recognition under
Swiss law of the relationship between the first and third applicants were within the limits of
compliance with Article 8 of the Convention.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The applicants are three Swiss nationals. The first and second applicants were born in 1973 and 1976
and are a same-sex couple. They have been registered partners since 2011. The third applicant is a
child who was born via gestational surrogacy in 2011 in the United States and also has US nationality.
In July 2010 the first and second applicants entered into a gestational surrogacy contract in the
United States. An embryo created from an anonymous donor’s egg and the second applicant’s sperm
was implanted in a surrogate’s uterus. Once the pregnancy was confirmed the California court
delivered a judgment declaring the first and second applicants to be the unborn child’s legal parents.
When the third applicant was born, in 2011, a birth certificate reflecting the judgment was issued in
the United States.
In April 2011 the applicants asked the Swiss authorities to recognise the US judgment and copy the
birth certificate into the relevant civil register. Their request was denied by the Register Office of the
canton of St Gall.
In July 2013 the applicants appealed to the St Gall Cantonal Home Affairs Department, which
decided to allow the first and second applicants to be registered as the child’s fathers. A few days
later the Federal Office of Justice (FOJ) challenged that decision in the Saint-Gall Cantonal
Administrative Court. That court dismissed the FOJ’s challenge after weighing up the interests at
stake, namely the prohibition of surrogacy in Switzerland and the good of the child. It held that both
of those principles were part of Swiss public policy and in essence took the view that the child should
not have to bear the adverse consequences of the choice – regrettable though it was – that his
parents had made. The FOJ appealed to the Federal Court.
In May 2015 the Federal Court allowed the FOJ’s appeal and reversed the judgment of the cantonal
court. It held that using surrogacy in California to circumvent the prohibition in place in Switzerland
had amounted to a material evasion of the law. It went on to recognise the California judgment in so
far as it concerned the parent-child relationship between the child (the third applicant) and his
genetic father (the second applicant) but withheld recognition of the relationship declared by the
US court between the child (the third applicant) and the intended father (the first applicant). It was
the Federal Court’s view that, notwithstanding the non-recognition of a parent-child relationship
between the non-genetic intended parent and the child, the child’s position would be sufficiently
protected by the Swiss legal system and would be compatible with the principle of the best interests
of the child.
In January 2018 an amendment to the Civil Code came into force which legalised the adoption of a
registered partner’s child. The applicants filed for adoption that day, and the cantonal authorities
granted the adoption on 21 December 2018.
In September 2021 Swiss voters approved an amendment to the Civil Code legalising “civil marriage
for all” in Switzerland.
THE DECISION OF THE COURT…
Article 8
Complaint concerning refusal to recognise a parent-child relationship between the intended
father and the child born through gestational surrogacy
The Court found that there had been an interference with the third applicant’s right to respect for
his private life. It was also prepared to accept that there had been an interference with the exercise
of the right to respect for family life vis-à-vis all the applicants.
The Court went on to note that surrogacy was prohibited in Switzerland. It accordingly took the view
that the refusal to recognise the US judgment concerning the parent-child relationship between the
first and third applicants had, for the purposes of Article 8 of the Convention, been in accordance
with the law.
The Court also noted that Switzerland’s refusal to recognise parent-child relationships between
children born through surrogacy abroad and their intended parents stemmed from a concern to
discourage Swiss nationals from going outside the country to use a reproductive method which it
had prohibited on its territory, the aim being, as it saw the matter, to protect children and
surrogate mothers. The Court therefore accepted that the interference at issue had been in pursuance
of two of the legitimate aims listed in Article 8 of the Convention, namely the protection of health
and the protection of the rights and freedoms of others.
The Court also pointed out that the situation of the applicants in this case was different from that of
the applicants in its previously decided cases against France. The chief distinguishing feature of the
present case was that the first two applicants were a same-sex couple in a registered partnership
whereas the applicant parents in the cases against France had been different-sex married couples.
Nevertheless it was of the opinion that the principles expounded in the French cases were applicable
to the present case; it stated in particular that the child’s right to respect for private life required
that domestic law provide a possibility of recognition of a legal parent-child relationship with the
intended parent. It also stated that the margin of appreciation afforded to States was limited
where the principle of establishing or recognising parentage was itself at issue, and that the interests
of the child could not depend on the parents’ sexual orientation alone.
Right to respect for private life of the third applicant (the child born through surrogacy)
At the time of the third applicant’s birth, domestic law had afforded the applicants no possibility of
recognition of the parent-child relationship between the intended parent (the first applicant) and the child. Adoption had been available to married couples only, to the exclusion of those in registered partnerships. Not until 1 January 2018 had it become possible to adopt the child of a registered partner. Once it had, the applicants had filed for adoption and had been granted it by a
decision of 21 December 2018. Thus, for nearly seven years and eight months (from the application
for recognition made on 30 April 2011 until the adoption granted on 21 December 2018), the
applicants had not had any possibility of securing definitive recognition of the parent-child
relationship. Such a time-frame was incompatible with the principles already laid down by the Court
in other cases and, in particular, with the best interests of the child, in so far as it might put the child
in a position of legal uncertainty regarding his or her identity within society and deprive him or her
of the chance to live and develop in a stable environment.
The Court held that to withhold recognition of the lawfully issued foreign birth certificate in so far as
it concerned the parent-child relationship between the intended father (the first applicant) and the
child born through surrogacy in the United States, without providing for alternative means of
recognising that relationship, had not been in the child’s best interests. In other words the general
and absolute impossibility, for a significant period of time, of obtaining recognition of the
relationship between the child and the first applicant had amounted to a disproportionate
interference with the third applicant’s right to respect for private life under Article 8. Switzerland
had therefore overstepped its margin of appreciation in the case by not making timely legislative
provision for such a possibility. There had been a violation of the third applicant’s right to respect
for his private life.
Right to respect for family life of the first and second applicants
The Court observed that the surrogacy arrangement which the first and second applicants had used
to start a family had been contrary to Swiss public policy. It took the view that it had been neither
arbitrary nor unreasonable for the Federal Tribunal to hold that using surrogacy in California to
circumvent the prohibition in place in Switzerland had amounted to a material evasion of the law.
What was more, the first and second applicants had not alleged that they had been unaware of the
Swiss law prohibition against surrogacy, and they had acted in such a way as to present the
competent authorities with a fait accompli. Furthermore the Swiss authorities’ non-recognition of
the birth certificate had not, in practice, significantly affected their enjoyment of family life.
Accordingly, the Court concluded that the practical difficulties which the applicants might encounter
in their family life in the absence of recognition under Swiss law of the relationship between the
first and third applicants were within the limits of compliance with Article 8 of the Convention. There
had been no violation of the first and second applicants’ right to respect for family life.
Other Articles
The Court unanimously held that there was no need to rule separately on the complaint under Article 8
of the Convention concerning the duration of the proceedings which had ultimately led to recognition
of a parent-child relationship. It also held by six votes to one that there was no need to rule separately
on the complaint under Article 14 read in conjunction with Article 8.
Just satisfaction (Article 41)
The Court held by six votes to one that Switzerland was to pay the third applicant 15,000 euros (EUR)
in respect of non-pecuniary damage and EUR 20,000 in respect of costs and expenses.
Separate opinions
Judge Krenc expressed a concurring opinion. Judge Elósegui expressed a dissenting opinion. Judge
Pavli expressed a partially dissenting opinion. These opinions are annexed to the judgment.
