Under Swiss law, same-sex couples cannot marry, however they can conclude a registered partnership allowing them to benefit from almost the same legal protection as a marriage.
The law on registered partnership (LPart) was introduced in January 2007. However, families composed of same-sex parents had to wait until 2017 to benefit from a legal framework allowing children to be recognized by both parents. Before that, the child could have only one legal parent, the biological mother or father.
In Switzerland, there are about 30’000 children raised by same-sex parents, within “rainbow” families.
However, same-sex couples are not allowed to adopt or proceed to IVF or use the services of a surrogate mother (art. 28 LPart).
Family reunification procedure
The law on registered partnership allows the spouse to be recognized as the legal heir in case of the death of the partner and consequently allows family reunification for the foreign spouse.
To proceed to a registered partnership in Switzerland, the foreign partner must first be able to establish the legality of her/his stay in Switzerland, for example be on a 90 day Schengen visa or hold any valid visa or Swiss permit.
Then the preparation procedure takes place at the civil registry authority of the commune of the Swiss resident and follows the same steps as a marriage procedure.
When the registered partnership was concluded in a foreign country, the procedure must first be recognized in Switzerland (The French PACS for example is not recognized in Switzerland as the equivalent of a registered partnership but the marriage is), for the Swiss resident to request a B permit for her/his foreign spouse under family reunification.
The timeframe for such procedure should not exceed 5 years from the date of the registered partnership or foreign marriage is concluded (art. 47 al. 1 LEI).
Since January 2018, same-sex couples in Switzerland can adopt their registered partner’s child and obtain shared parental authority (art. 27 al. 1 LPart).
The couple must have been together for at least 3 years and the non-biological parent must have at least 16 years age difference with the child and must have provided at least 1 year of parental care. The child must give his consent when older than 12-13 years old (art. 265 al. 1 CC).
Family reunification procedure applies following the same conditions as the foreign spouse if the child is living in a different country, where the foreign child receives a B permit once he has been adopted by the Swiss resident. The procedure must take place within 1 year for a child over 12 years old (art. 47 al. 1 LEI).
Reproductive tourism and consequences
Under Swiss law and potentially in paradox to art. 8 al. 2 Cst, stating than it is forbidden to discriminate against a person because of his sexual orientation, same-sex couples cannot legally proceed to IVF, adopt a foreign child who has no biological link with the parents or use the services of a surrogate mother.
In practice, however, it not unusual to see same-sex couples bypassing the law for “reproductive tourism” purposes. Countries like India, Laos and the USA (California) allow such procedures and are quite popular for these methods permitting same-sex couples to have their own child.
The issue lies in recognizing the child legally in Switzerland once the child is born.
Thus, despite the fact that authorities must in priority take into consideration the interest of the child they do not wish to encourage the commercialization of human bodies, especially in third-world countries where these practices can become an economic incentive for some families.
Therefore, same-sex couples who wish to be recognized as both parents in that type of case often face a legal battle with Swiss authorities. For example, in 2012 a Swiss gay couple who used the services of a surrogate mother in California had to endure 3 years of legal procedure to appeal against the initial negative decision to recognize both parents. The Federal Court finally recognized the biological father after 3 years of procedure (ATF 141 III 312, 2015).
The situation concerning the legal issues surrounding inter-countries adoption by same-sex parents is currently being debated by a group of experts at The Hague Convention.
Our team of experts is available for legal assistance with family reunification procedures for same-sex couples and intra-familial adoption procedures.
28/08/20 – Alexa Mossaz, immigration specialist at Legal Expat