Spahn's Resignation and the Swiss Debate: Should the State Dictate Private Morality?

A Divided Legal Situation in Switzerland

In Switzerland, the situation is split: domestically, surrogacy is prohibited, but those who go abroad are not punished. Children born abroad through surrogacy can be brought to Switzerland and recognised or adopted here. Pink Cross, the umbrella organisation of gay and bisexual men, is calling for surrogacy to be permitted for Swiss citizens – similar to what Israel already does. Demand for cross-border surrogacy is rising, however, without authorities collecting data on it.

The legal and ethical tension in Switzerland is described by Jürg Streuli, a medical ethicist and member of the National Ethics Commission (NEK): "Tatsächlich besteht in der Schweiz eine rechtliche und ethische Spannung." Surrogacy is prohibited domestically, "unter anderem zum Schutz der Leihmutter", while parent-child relationships established abroad are recognised – to protect the child who has already been born. This differentiation is "nicht zwingend inkonsequent, sondern Ausdruck des Versuchs, zwei unterschiedliche Schutzgüter gleichzeitig zu berücksichtigen".

Federal Council Against Criminalisation

The Federal Council rejects criminalising surrogacy tourism. It argues that fact-finding would largely have to take place abroad, which would lead to considerable difficulties. It also feared that a conviction of the intended parents could jeopardise the child's welfare. Streuli nevertheless sees a need for action personally: "Die Schweiz könnte hohe Standards ins Gesetz schreiben. Damit liessen sich Ausweichbewegungen ins Ausland reduzieren und der Schutz aller Beteiligten stärken."

Unlike Switzerland, Italy has taken a hard line since 2024: the government of Giorgia Meloni has made the use of surrogacy abroad a criminal offence. Had Spahn been Italian, he would have ended up before a criminal judge. Switzerland could, like Italy, punish surrogacy tourism, but chooses not to. In Austria too, surrogacy is prohibited, but is tolerated when carried out abroad.

International Comparison: From Israel to Italy

Eric Frey's article places the case in a broader context: in addition to surrogacy, other contested areas within reproductive medicine include in-vitro fertilisation, egg-freezing and termination of pregnancy, as well as LGBTIQ rights, prostitution and, ultimately, assisted dying. In Austria, in-vitro fertilisation is not available to single women, abortion remains illegal – even if decriminalised – and is often difficult to access, and freezing one's own eggs is only now being generally permitted. Assisted dying was allowed by supreme court ruling, but only under conditions that are very difficult to fulfil. According to Frey, Austria's approach to prostitution is seen as a model for others.

Private Morality as Political Conflict

In his fundamental argument, Frey contends that a liberal democracy in the 21st century should bring itself to the position that the state should not, in principle, dictate private morality. Exceptions are justified only where physical or psychological violence is involved. The Spahn case demonstrates, as a prime example, how quickly a personal life plan can become a political scandal when law and societal expectations diverge.

The debate thus remains open for the time being: while Switzerland focuses on recognising children who have been born and protecting domestic surrogate mothers, Italy pursues an absolute criminal approach. Pink Cross and medical ethicist Streuli are calling for more liberal regulation with clear standards; the Federal Council is sticking to its wait-and-see line. Which path prevails will also depend on how many more couples seek to go abroad – and on how the legislator manages the balancing act between the welfare of the child, women's rights and parental self-determination.