ECtHR: Switzerland violated rights of child born through US surrogacy arrangement
Switzerland violated the rights of a child born through a surrogacy arrangement in the US by not recognising the intended father as a parent, the European Court of Human Rights (ECtHR) has ruled.
The case of D.B. and Others v. Switzerland concerned a same-sex couple who were registered partners in Switzerland and had entered into a gestational surrogacy contract in the US under which a child — the third applicant — was 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.
In today’s Chamber judgment, the ECtHR held by a majority of six votes to one that there had been a violation of Article 8 (right to respect for private life of a child born through surrogacy) of the European Convention on Human Rights.
The court also held unanimously that that there had been no violation of Article 8 (right to respect for family life of the intended father and the genetic father).
The chief feature which distinguished the case from those the court had decided before was that the first two applicants were a same-sex couple in a registered partnership.
At the time the child was born, domestic Swiss 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.
It only became possible to adopt the child of a registered partner in 2018, meaning the applicants had no possibility of securing definitive recognition of the parent-child relationship for nearly seven years and eight months.
The court therefore held that for the Swiss authorities to withhold recognition of the lawfully issued foreign birth certificate insofar as it concerned the parent-child relationship between the intended father and the child, without providing for alternative means of recognising that relationship, had not been in the best interests of the child.
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.