‘Marriage for all’ from the perspective of children’s rights

9 September 2021

What is it all about?

The Swiss Parliament passed ‘Marriage for all’ in December 2020. Thousands of children are already living in same-sex families in Switzerland. The amendments to the Swiss Civil Code (in German) include:

  • allowing same-sex couples to marry;
  • joint adoption of children;
  • granting married lesbian couples access to sperm donation services;
  • recognition of the second parent as a parent from birth if the child was conceived in Switzerland using assisted reproductive methods.

What do these changes mean in terms of children’s rights?

Let us look at the individual changes with reference to the United Nations Convention on the Rights of the Child (UNCRC) ((LINK)). According to Article 3(1) and Article 2 UNCRC, the best interests of the child shall be a primary consideration in all actions concerning children. Ensuring the child’s well-being is in the interests of the child. Among other things, the child has a right to life, parental care, a non-violent upbringing, protection from abuse, equality, health, education, play and leisure time as well as a right not to be discriminated against – especially in legal matters.

The following aspects of the current situation for children in Switzerland who live in same-sex families have not been brought into alignment with the UNCRC. 

Worse off in cases of separation or death

In Switzerland, the law does not automatically recognise both members of a same-sex couple as parents of the child. This legally disadvantages these children, especially in the event of separation or the death of one parent. 

In the case of a separation, both parents are not entitled to custody. The child is no longer represented by the other parent when important decisions have to be made (school, medicine, etc.). Additionally, the child has no legal right to communicate or live with the person who is not recognised as a parent. However, under the Convention on the Rights of the Child, both parents should have common responsibilities for the upbringing and development of the child (Article 18(1) UNCRC).

Furthermore, as the child is not legally entitled to financial support from the unrecognised parent, children from same-sex partnerships end up being financially worse off.

In the event of death, legal custody is not awarded to the remaining parent if that person is not legally recognised as a parent. Children of same-sex couples are at a disadvantage in terms of inheritance as they have no legal entitlement to an orphan’s pension and they do not count as legal heirs.

Legal loopholes need to be closed

These situations show how important it is from the perspective of children’s rights to provide a suitable legal framework for these existing family structures. If children grow up as the children of a same-sex couple, both parents must be legally recognised as parents.

The existing option to adopt a stepchild does not go far enough as it does not apply from birth and the adoption process involves numerous obstacles which could cause the endeavour to fail.

Marriage for all secures children’s rights

The Ombuds Office Children’s Rights Switzerland believes that the amendments to the Swiss Civil Code contain appropriate solutions to the legal disadvantages suffered by the affected children and young people. 

The regulations concerning access to sperm donation in Switzerland for female married couples is another important issue as, under the UNCRC, the child must be guaranteed the right to learn the identity of its biological parents. For this reason, the new act has been explicitly worded so that the wife of the biological mother will only count as the mother of the child in future if the child was conceived in line with the requirements of the Swiss Reproductive Medicine Act. If sperm is donated abroad, the spouse is not registered as a mother. This provision aims to ensure that the sperm is donated in Switzerland so that children are guaranteed the right to learn the identity of and contact the donor. 

The child should be given information about its origins in a transparent, age-appropriate manner from birth. By law, the adopted children of heterosexual couples only automatically have the right to learn the identity of their biological parents when they reach 18 years of age. We believe that it should be permitted as soon as a child develops the capacity to make decisions, regardless of whether they are the child of heterosexual or homosexual parents. This knowledge can be crucial to the development of a child, especially during puberty.

The Ombuds Office Children’s Rights does not believe that the change to the law will jeopardise the protection and advancement of children’s rights, but rather that it will strengthen them for the reasons given above.

The quality of a child’s upbringing is the main deciding factor in that child’s well-being. Children need trustworthy, reliable and available caregivers, parental care and a safe home, not to mention a stable, heterogeneous environment with relationships with grandparents, godparents and other close people. These are the best possible conditions for a child to develop in a healthy way.