(note: this blog is NOT legal advice)

A child cannot have two fathers, Switzerland’s top court has ruled. However, the child in question is in fact being raised by two dads, and the biological mother is an anonymous egg donor. Accordingly, the court’s ruling has been criticized for failing to recognize the reality of the situation, and also for opening up the possibility of serious problems for the child down the road.

For example, what happens if the bio dad dies? This would presumably leave the child, now four years old, in the precarious position of living with a “lame duck” parent who has no custodial rights. The surviving dad would be unable to do things such as procure government documents for the child — like a passport. Even if the child has a passport, the surviving dad would not have permission to travel with the child, as this permission can only be given by a custodial parent. There would be a host of other problems, such as dealing with the child’s school, dealing with government agencies, and giving consent for the child’s medical treatment. Blood relatives of the deceased bio-dad might come out of the woodwork to claim custody. Plus, the surviving dad would be deprived of the great symbolic value of being a legally-recognized parent.

The story began in California, where the child was born to a surrogate mother who had been implanted with an embryo created from the bio dad’s sperm and a donated egg from an anonymous woman. The California court, in what has long been a routine procedure there, declared the bio dad and his same-sex partner to be the child’s legal parents. But the high Swiss authorities took a different view, with the result that only the bio dad is recognized as a legal parent in Switzerland, where surrogacy is currently banned, as is the adoption of children by same-sex couples.

Swiss law thus stands in marked contrast to many jurisdictions worldwide, including here in Ontario, where legal recognition of two fathers, or two mothers, or more than  two parents, is no problem ever since the groundbreaking 2007 Court of Appeal ruling in AA v. BB. This decision departed from the rule that the only way to be someone’s “parent”in the eyes of the law —apart from going through the adoption process —was to be the biological mother or father. This traditional legal definition of “parent” needed to be updated, said the court, in light of the realities of the modern family, the legal recognition of same-sex couples, and the new capabilities of reproductive technology. It remains to be seen whether Switzerland will move in the direction of reality.

Bill Rogers is a Toronto lawyer, mediator and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice.

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