“In the vast majority of cases, surrogacy is the last option”

Surrogacy is illegal in this country, but couples from Switzerland still perform it abroad. Are they making themselves punishable by doing so?
Karin Hohl: No. Surrogacy is illegal in Switzerland under the federal constitution, but you will not be prosecuted if you use surrogacy abroad. On the other hand, doctors who perform surrogacy in Switzerland could be prosecuted.

Can the prospective parents still have legal problems?
In any case, surrogacy involves legal difficulties. To what extent essentially depends on whether both parents are genetically related to the intended child and whether there is a court order or just a birth certificate.

First of all, genetics: when are the parents genetically related to the child?
The intended parents are then genetically related to their child if it was produced through a sperm donation from the intended father and an egg cell donation from the intended mother. If the sperm and egg donation is not from a prospective parent, or only from a prospective parent, then one or no parent is genetically related to the child.

What difficulties arise if there is no genetic relationship to the child?
The prospective parents who have no genetic connection to the child are not recognized as legal parents, but must adopt the child. The path to creating parenthood takes a lot of time and effort. It may take several years before there is clarity about the legal relationship between the prospective parents and the child.

What is the procedure if one or both parents are genetically related to the child?
In this case, it depends on the country in which surrogacy is used. In the US, for example, a court case is being held in which it is determined which intended parents are legal parents. Legal proceedings are not possible in countries such as Ukraine or Georgia. The parents only get a foreign birth certificate – they have no court order.

What are the consequences?
The federal court ruled last year that a birth certificate is not recognized, even if the intended parents are the genetic parents. In the absence of a court decision, Swiss law applies, which means that the woman who gave birth to the child is the legal mother – in this case, the surrogate mother. The genetic father can acknowledge paternity and is registered as a parent in the Swiss register of civil status. However, the child is given the name of the surrogate mother, who also has sole parental authority. To be recognized as the legal mother, the genetic mother must apply for adoption for her own child. The current practice thus leads to unequal treatment between the genetic parents, in violation of the prohibition of discrimination between men and women.

So in Switzerland the surrogate mother is forced to become the mother of a child to whom she is not even genetically related?
Exactly, that’s the problem with the current practice. The surrogate mother becomes the child’s mother against her will—usually without being notified. Because abroad, the intended parents are seen as the legal parents. Forced parenting of the surrogate mother goes against the spirit and purpose of the prohibition of surrogacy, which is designed to protect the woman.

How to avoid this hurdle of recognition couples traveling to the US?
For Swiss couples, among others, the USA has the advantage that legal proceedings are conducted and the parentage of the prospective parents is established in a judgment. However, many couples cannot afford surrogacy in the United States.

How much does surrogacy cost?
In the US you have to take into account about 150,000 to 200,000 Swiss francs. In Georgia and Ukraine, for example, the costs are significantly lower – between 40,000 and 70,000 Swiss francs.

Why do couples choose surrogacy over adoption?
Because it is very difficult to adopt a child in Switzerland. The demand for children to be put up for adoption far exceeds the supply. In Switzerland, only between 10 and 15 small children are given up for adoption each year. Due to the Hague Adoption Convention, which must serve the well-being of children and sets strict rules, international adoptions are also falling sharply. Due to the uncertainty and long waiting time for an adoption, childless couples are increasingly opting for surrogacy.

What about maternity and paternity leave?
Maternity leave is linked to the birth process. According to the law, the mother is not entitled to maternity leave because she did not give birth to her child herself. Instead, paternity leave is linked to legal parenthood. Paternity leave can therefore be requested under certain circumstances.

What do you think about legalizing surrogacy in Switzerland?
What would be desirable in the first place would be a more liberal practice in recognizing the parentage of the intended parents. There is no other country that follows such a strict practice and requires the surrogate to be a legal parent. Legalization can certainly be discussed in the future, but it would be more urgent that the relationship of the child with the intended parents in Switzerland can be established quickly and without major obstacles. It is important to remember that surrogacy is the last option for many couples. They often have a long history of suffering and have already done everything they can to have a child.

You have been advising couples on surrogacy abroad for over a decade. What do you recommend for couples considering surrogacy abroad?
Careful planning and early consultation are recommended to stay abreast of the process and legal difficulties.

Have you ever experienced complications?
Medical complications are quite rare. They are most likely preterm births, which also occur in traditional pregnancies. In these cases, the intended parents cannot experience the birth together with the surrogate mother.

Has the demand for surrogacy increased in recent years?
Demand is slowly but steadily increasing. We now carry out about 40 new consultations per year.

Does adoption increase with demand?
I feel like society has taken a more open approach to surrogacy. This also has to do with the fact that the media no longer only reports negatively on the subject. It also helps if heterosexual couples dare to talk about their unfulfilled desire to have children. However, the development is held back by the very strict practice of the federal court and authorities regarding surrogacy in countries other than the US.