In this article, we detail the legal possibilities for having children in Switzerland, including the use of reproductive techniques.

If it is not possible to conceive a child naturally or if there is a risk that a serious illness could be transmitted to the offspring, many couples in Switzerland have the option of fertility treatment. But in this country not everything that is medically possible is legally permitted.

In this article, we detail the legal possibilities for having children in Switzerland, including the use of reproductive techniques.

What is the parent-child relationship in Switzerland?

According to family law in the Civil Code (ZGB), a parent-child relationship arises in Switzerland:

  • between the child and the woman who gives birth to the child.
  • between the child and the other parent if they are married. If a couple is not married, written acknowledgment of paternity is required.
  • through an adoption.

A couple is considered a possible candidate for a reproductive procedure if they have been unable to conceive after having regular unprotected sexual intercourse for one year (called infertility) or if there is a risk of passing on a serious genetic disease to the child. In the case of in vitro fertilisation, an assisted reproductive technology (ART), the couple must first have tried out other fertility treatments.

In Switzerland, fertility treatments are mainly regulated in the Reproductive Medicine Act (FMedG). Reproductive techniques may only be used if the biological mother of the child is the intended mother and if the mother is in a stable relationship with the second parent. Additionally, both parents must be able to take on the care and upbringing of the child up to the age of 18.

In the case that someone froze their germ cells (sperm or eggs), and then passed away, they may no longer be used to conceive a child. The same applies to embryos if they were created from the germ cells of a deceased parent. Donor sperm are exempt from the regulation.

Sperm Donation

Sperm donation is allowed in Switzerland for married couples experiencing infertility or who have the risk of passing on a serious genetic disease. Since 2001, when sperm donation was first legal in Switzerland, it is estimated that there have been around 4,524 live births involving a sperm donor. The statistics show that by the end of 2022, 837 men were registered sperm donors.

A sperm donor must be informed of his rights prior to donating. Additionally, he needs to provide information about his medical history and whether he may pass on medical risks; this typically involves blood tests and/or infectious disease screening. Finally, a sperm donor can only provide sperm to one clinic or location. It is possible that a doctor or agent may select the sperm donor according to the father's blood group and/or appearance (in the case of heterosexual couples).

Sperm donation and same-sex couples

Since Switzerland legalised same-sex marriage in 2022, married lesbian couples are also allowed to conceive a child using sperm donors. Previously, this was reserved for heterosexual, married couples. Since the law states that sperm donation is reserved for married couples, single women and unmarried couples in long-term relationships are unable to use a sperm donor.

While using donated sperm is legal under certain circumstances, commissioning someone to provide a semen sample for a fee is a punishable offense in Switzerland. However, sperm donors can be compensated for related expenses involved during the process.

Anonymous sperm donation

Anonymous sperm donation is prohibited in Switzerland. This means that the children conceived have a right to know who their genetic father is. As soon as the child is of legal age (18 years old), they may request information about the external appearance and the identity of the donor from the Federal Office for Civil Status (EAZW).

Although this right is offered, official figures show that the right to disclosure of the genetic father's personal details has rarely been used to date. Of the 4,524 children who were born through a sperm donation in Switzerland between 2001 and 2021, only five children have requested information about their paternity.

While the sperm donor must provide contact information to the clinic, they cannot be held responsible for paying child support. This means that neither the child, the mother nor the legal father may sue the donor so that he or she has to pay maintenance.

Age and death

There is no legal age limit for either the sperm donor or the recipient woman. However, most sperm banks set their own maximum age for donors. For many sperm banks, this is 40 years. In contrast to couples in which the male partner dies, the sperm of a deceased donor may continue to be used by couples experiencing infertility for a maximum of five years.

The commentary on the FMedG states that a maximum age of between 45 and 50 years is generally preferable for women wanting to conceive through assisted reproduction. Depending on the health and environment of the couple wishing to have children, a higher age for artificial insemination could also be justified.

Social Freezing

Social freezing is allowed in Switzerland.

Social freezing describes the process of freezing human gametes (eggs and sperm) for social reasons so that they can be used later for artificial insemination. This must be distinguished from medical freezing, which is used, for example, in cancer patients before they have to undergo chemotherapy or radiation therapy and want to use this process to preserve their fertility. In contrast to medical freezing, there is no insurance coverage for social freezing.

Longevity

According to the Reproductive Medicine Act, gametes may be frozen for a maximum of ten years. After this period has expired, the egg cells or sperm cells will be disposed of properly. This is despite the fact that it has been proven that germ cells also be frozen for a much longer period of time and can still lead to a live birth. The germ cells of cancer patients are an exception. They may be left frozen for longer than 10 years.

Thawing and subsequent treatments

It is important to remember that after thawing the gametes, assisted reproduction, in the form of intracytoplasmic sperm injection (ICSI) or in vitro fertilisation (IVF), must be performed in order to become pregnant. However, these technologies are only permitted for couples who have been diagnosed with infertility or have a chance of passing on a serious genetic illness.

The timing of freezing is therefore not an easy decision: oocytes should not be frozen too early because they can only be stored for 10 years, but should not be frozen too late either, otherwise the oocyte quality could be impaired. Women should inform themselves in good time about a possible maximum age in the fertility clinic so that they do not miss the window in which they can use their frozen eggs.

In Vitro Fertilisation (IVF)

In-vitro fertilisation is allowed in Switzerland.

During in-vitro fertilisation, egg cells are removed from the woman in a fertility clinic, and the male partner or a male donor provides a sperm sample. The germ cells are then placed in a petri dish, where, in the best-case scenario, fertilisation takes place. Special forms of IVF, such as intracytoplasmic sperm injection (ICSI), are also permitted in Switzerland.

Prior to undergoing IVF, a couple must have a record of fertility analyses (including hormone diagnostics, physical examinations, and imaging tests), and have tried other treatment options. This may include hormone treatments or intrauterine uterine insemination (IUI). Couples who have undergone medical freezing or are of more advanced age may be able to proceed to IVF more quickly.

Age limits

Although there is no legally binding age limit for women who undergo assisted reproduction, most fertility clinics in Switzerland set an age limit themselves. This is usually between 40 and 50 years.

Conditions for the partnership

According to Swiss law, a couple does not have to be married to have in vitro fertilisation performed. However, a stable partnership is a requirement and both parents should be able to care for the child until the age of 18.

However, lesbian couples will only receive sperm donation if they are married. Couples in which there is a high probability that one of them will die of an illness within the next 18 years should seek individual advice from a fertility specialist about the possibility of IVF.

Preimplantation Diagnostics

Pre-implantation genetic diagnostics (PGD) are strictly regulated in Switzerland, but generally allowed.

PGD is used in couples who either have unexplained infertility or who have the potential to pass on a serious illness to their child. In PGD, cells are removed from an embryo that was created in a petri dish and analysed. Examining genetic information can provide information on whether there are disease-relevant mutations or anomalies in the chromosomes.

In Switzerland, pre-implantation diagnosis is permitted if:

  1. The danger that an embryo with a hereditary predisposition for a serious disease implants itself in the uterus cannot otherwise be averted.
  2. It is likely that the serious illness will appear before the age of 50;
  3. No effective and appropriate therapy to combat the serious illness is available; and
  4. the couple asserts in writing to the doctor that the risk according to point 1 is not reasonable for them.

(Excerpt from the Swiss Reproductive Act)

Before PGD can be carried out, both the fertility clinic that completes the assisted treatment and an institute that has the necessary approval from the Swiss Federal Office of Public Health (FOPH) must be involved. The fertility clinic must evaluate that all the conditions for PGD are met and that the parents understand the risks.

It is the institute that carries out the genetic analysis of the potential parents. A treatment contract is required, which the parties involved must sign. Read more about the specifics of PGD in our related blog article.

Handling of the embryos

Typically during IVF, more than one embryo is conceived. Regardless of the diagnosis obtained through PGD, the couple has the option of initiating a pregnancy through embryo transfer, freezing the embryos for later fertilisation, or donating them to research. If a couple decides against continuing the procedure, they can consent to the destruction of the embryos.

If frozen, the embryos are professionally destroyed by medical staff after a maximum of five years. However, couples are entitled to apply for an extension for a further five years. Similar to the law detailed in social freezing, individuals who are experiencing or may experience infertility for medical reasons are exempt from this rule.

Egg Donation

Egg donation is not allowed in Switzerland.

In egg donation, a woman donates her eggs to a couple so that a fertility clinic can combine the eggs with the man's sperm. The practice shakes a legal principle that was considered unbroken before reproductive medicine: Mater semper certa est ("the mother is always certain"). In other words, the carrier and biological female parent of a child is no longer always the mother. This carries legal and ethical risks, as we explain below.

One of the reasons that egg donation is highly contested is the claim that egg retrieval is too invasive for the donor. In fact, in order to donate oocytes, hormone stimulation is first required to boost oocyte production. The egg cells are then surgically removed under anesthesia. As with any medical intervention, there are certain risks.

Another ethical dilemma revolves around the question of financial compensation. The paid purchase of germ cells is prohibited in Switzerland and is punishable by up to three years in prison. However, in other countries, donors may receive payment for egg donation. If the financial incentive is too great, there is a risk that women with financial vulnerabilities in particular will be motivated to donate.

Current political situation in Switzerland

Although there are no official statistics, it is assumed that every year several hundred couples whose reproductive limitations are caused by the woman travel abroad to receive egg cells from a donor. Destinations include Spain, Italy and Austria. In Spain, however, the donors remain anonymous, which means that the conceived child has no later right to know who its genetic mother is. This circumstance and the legalisation of ‘Marriage for All’ have propelled egg cell donation back into the political agenda in Switzerland.

The proposal ‘Egg cell donation should finally be legalised in Switzerland!’, made by National Councilor Katja Christ (GLP, Basel-Stadt) was adopted by Parliament in 2022. It is now up to the Federal Council to draw up a draft law and present it to Parliament. The Federal Council faces a difficult task, because establishing the legal framework is linked to many ethical considerations. Some of the questions that need to be answered are:

  • How much money should egg donors receive as compensation for their time?
  • What should be the minimum age for egg donors?
  • How often can women donate their eggs?
  • Should there be a maximum age for women to be eligible for egg donation?

Embryo donation is not the subject of discussion and remains illegal.

Surrogacy

Surrogacy and its mediation is not allowed in Switzerland.

The surrogacy process takes on various forms in other countries; in order to be legally recognised, surrogacy arrangements typically involve legal surrogacy contracts. Common types of surrogacy include:

  • Traditional surrogacy. In traditional surrogacy, the surrogate is inseminated with sperm from the intended father or with donor sperm, and gives birth to a child. As her own egg is used in this process, it is considered a form of egg donation. Insemination is typically done through intrauterine insemination (IUI). In this case, the female carrying the baby is genetically related to the child, although she will not be a legal parent.
  • Gestational surrogacy. In this form of surrogacy, a female carries the fertilised embryo of another male and female. For this reason, they are called a gestational carrier (meaning they carry the developing baby through gestation but are not a biological parent).
  • Commercial surrogacy. This form of surrogacy, which is often carried out through a surrogacy agency, involves monetised surrogacy agreements. This means that the gestational surrogate is reimbursed for the healthcare and life-related costs while carrying the baby, and receives compensation for their role in carrying the baby and giving birth. The cost of surrogacy varies across different countries.
  • Altruistic surrogacy. When agreeing to altruistic surrogacy, a female is agreeing to be a surrogate for reasons that are not related to compensation. This means that beyond receiving financial support for the medical and lifestyle expenses related to surrogacy, they are not being paid. Altruistic surrogacy is often done by a family member of the intended parents.

Surrogacy is not only used by couples experiencing infertility, it may also be for singles or couples who wish to have children but do not want to become pregnant themselves for personal or medical reasons. It may also be used in a case where a health condition prevents a woman from carrying a child, such as following a hysterectomy.

Ethical dilemma

Just like egg donation, surrogacy also carries the risk of exploiting women with financial vulnerabilities. This concern is reinforced by the fact that Swiss couples travel to economically disadvantaged countries, such as India, Georgia or the Ukraine, in order to fulfil their desire to have children.

Since the practice is banned in Switzerland, the Swiss authorities do not keep official statistics on how many children living in Switzerland were carried by a surrogate mother abroad. Nevertheless, it is known that Swiss couples make use of the services of surrogate mothers in practice.

From a legal point of view, surrogacy abroad is a complicated matter. Legal issues can arise because in Switzerland, the recognition of parentage initially only arises between a child, the biological mother, and the second parent if the parents are married. This means that in the case of surrogacy, the intended parents cannot automatically become the legal parents.

If a heterosexual couple uses the male partner’s sperm to conceive the child—in contrast to a sperm donor—the biological father is not the same as the legally recognised father. For a man to be considered a legally recognised father from the birth of the child, he must be married to the biological mother. If a couple who has paid a surrogate mother to carry a child takes the child back to Switzerland, the father must acknowledge paternity in writing before entering the country and have it entered in the civil status register.

In order for the intended father and intended mother to be regarded as the legal parents of the child, the female partner—married or not—has no choice but to adopt the child. However, it takes a long time before the adoption process in Switzerland is completed. For example, one of the requirements for a stepchild adoption is that the person wishing to adopt a child has lived with the child for at least one year. Such a case recently ended up in federal court.

The surrogacy laws will continue to exist in Switzerland even after egg donation has been legalised.

Conclusion

It is unfortunately not easy for every couple to have a child of their own. Although reproductive medicine has launched major innovations and made progress in recent decades, it is not all supported by Swiss law. In principle, sperm donation, artificial insemination, pre-implantation diagnostics and social freezing are permitted in Switzerland. Surrogacy, egg and embryo donation are not allowed, although the legalisation of egg cell donation is currently on the political agenda in Bern.

Do you think assisted reproductive technology may help you conceive? Our empathetic team of experts will be happy to advise you on your concerns. Reserve your spot for a free consultation today!