In the United States, both men were registered as fathers of the child, and when they returned to Switzerland, the canton of St Gallen ratified the US decision. However, the Swiss justice office objected. Arguing that Swiss law only allowed a man with a genetic link to the child to be recognised as a father, it appealed against the Swiss court’s recognition of the relationship.
The Federal Court agreed, stating that it was unlawful to list a non-biological father as a father in the civil register. This was “plainly incompatible” with Swiss legal and ethical values. The court reasoned that “a child must be protected from being downgraded to a commodity which can be ordered from a third party”.
The court also took a dim view of surrogate motherhood, saying that women’s bodies should not be commercialised. Swiss law ban any form of surrogacy, no matter what the woman’s marital status may be. “According to Swiss civil law, a pregnant woman cannot actively abandon her rights regarding the child before it is born” it said.
The lawyer representing the two men criticised the decision. The decision "ignores the interests of the child and the living reality of both men, who have been living together as a family since 2011,” she said. The verdict would leave the child without adequate legal safeguards, especially if the couple separated or if the biological father were to die.