Building a family as an LGBTI+ parent takes planning. Whether your family grows through IVF, a co-parenting arrangement or surrogacy, the addition of a new family member is life changing.
However, the law on parentage and parental authority (or responsibility) in Switzerland does not yet provide a legal framework of protection from birth for all children living in diverse households. Given that reality, it is important to consider the legal aspects of having and raising children. This will enable you to put in place appropriate documentation which will provide a firm foundation and protect your family in the future.
1. Will you and your partner have all the rights and responsibilities that you both need to care for your child under Swiss law?
The law dictates who the legal parents are and who has parental authority (which is the right to make and be involved in decisions about a child), irrespective of what the adults have agreed. Under Swiss law a child can have no more than two legal parents. The birth mother is always the legal mother and will have parental authority. The other legal parent is either her spouse or the genetic father. If the parents are unmarried, the genetic father will usually not automatically have parental authority from the child's birth. Swiss law does not therefore protect LGBTI+ couples conceiving or wishing to have a child together.
Whether someone is a legal parent, or has parental authority, can have an important impact on their rights and responsibilities in respect of their child, as well as being emotionally significant for the child and the child's parents.
Whatever your situation, it is worth checking the legal position and to put steps in place to establish legal parentage and acquire parental authority, if one or both of you do not have it. For many LGBTI+ parents in Switzerland, the only legal route to acquire joint legal parentage and joint parental authority is by way of a court process called second parent adoption.
2. Do we need a parenting or donor agreement?
Yes. If you are planning a known donation, or a parenting arrangement where one of you will not be a legal parent from your child's birth, it is important to set strong foundations.
You should not rush into trying to conceive, and make sure that you discuss the roles you each intend to have. Be as clear as you can about what you want, and be honest with each other and yourselves. In a known donor arrangement it is important to talk about your roles generally, as well as day-to-day practicalities. Disputes in donor cases very commonly stem from underlying mismatched expectations.
Putting in place a written agreement is a good way of committing to a clear framework. There is no standard format, and it is important that any document is personal to you. While these agreements are not legally binding under Swiss law they provide clear evidence of what was intended and may carry weight in court if there is a dispute (and will at least prevent argument over what was agreed, which is a common feature of disputed cases). By facilitating discussions at the outset which help everyone to enter into an arrangement with clarity and consensus, written agreements can also have a significant impact on preventing a dispute from ever arising.
3. Can we start a second parent adoption once our child is born?
Not immediately. Depending on your circumstances, you will have to wait at last one year. If you want to adopt the child of the person to whom you:
- are married; or have a registered partnership with; or live with in the same household,
you need to meet the following conditions:
- you must have been living in a household for at least three years with the father or mother of the child you wish to adopt;
- you must be at least 16 years older, and no more than 45 years older, than the child. Exceptions may be made to this rule for the sake of the child's welfare, but a justification must be provided; and
- the child must have been in your care for at least a year.
The child's genetic father/birth mother is generally required to give his/her consent to the adoption. However, if the parent is unknown, has been absent for at least two years with no known address, or is of impaired judgment, this requirement may be waived.
If the child is old enough to give their consent (generally meaning they are above the age of 12), they must also agree to the adoption.
4. What if I am a legal father but do not have parental authority under Swiss law?
If the parents of a child are not married to each other they must make a joint written declaration in order to establish joint parental authority. The parents must declare that they:
- agree to share responsibility for the child; and
- have agreed on residence for the child, on personal relations or each parent's share of childcare duties, and on child maintenance contributions.
The declaration can be made at the civil register office at the time of recognition of the child, or at a later date at the Child Protection Authority.
Until such a declaration is made, parental authority is awarded solely to the mother.
If one of the parents refuses to make a declaration on joint parental authority or if it is not possible to do so - for example, for same-sex couples - the other parent may contact the Child Protection Authority at the child's place of residence.
5. We are not Swiss nationals. Are there immigration or other considerations if our child is born abroad?
Yes. If the child's legal parent(s) are not Swiss nationals, your child will need to obtain a residence permit in Switzerland.If you are living together as a couple, you need to be aware that your 'legal' cohabitation rights are seriously limited should the relationship break down. Cohabitation laws have not evolved in the same way as laws for married couples and so if you are living together, or plan to, you need to get informed and to get protected. A cohabitation agreement will help you both understand your rights and inform the way to 'run' your relationship from the outset.
7. We don't have Wills
Should the worst happen it will be important that your child and your partner are protected financially, particularly if you are not yet a legal parent.
8. Who would you trust to look after your child in the event that you die?
While it is not possible to formally appoint guardians to care for your children in the event of your death, we would recommend that you name guardians in your Will. This could be the parent whose parentage is not yet established under Swiss law in the first instance and then a family member or close friend. It can always be reviewed over the years, but it is worth having the conversation sooner rather than later.
9. What if we separate or there is a dispute regarding the child arrangements?
If you are both registered as legal parents and share parental responsibility then, like any other parents, if you cannot agree living and contact arrangements after separation the family court will need to make a decision.
Things are more complicated if you are not both legal parents. You may want to know how it will affect your position if you are not your child's legal parent. This is always a difficult question to answer, as a great deal depends on the particular circumstances. Generally speaking, if you cannot agree, the court will look first at the child's best interests when considering what orders to make.
In cases where the separation takes place before the child is born (so that one or both parents has not yet had the chance to establish a relationship with their child) things can be even more difficult for the non-resident parent.
10. Be proud
We are proud to have assisted many families, not just through our cases, but also our advocacy work. There is still a lot to be done across all areas of our society to ensure fairness and equality for all and we continue to campaign.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.