This statement by Ingeborg Bachmann is the leitmotif of our position on paternity tests. The Federal Council threatens fathers who want to clarify the parentage of their (alleged or actual) children with up to three years in prison. We defend ourselves against this!
As part of the consultation on the total revision of the Federal Act on Genetic Tests on Humans (GUMG), we have taken the following position on this:
The Swiss Association for Shared Parenthood is the umbrella organization of parents' associations from all over Switzerland. The total revision of the GUMG affects our interests as well as those of our children, which is why we are commenting on this in the context of this consultation. Specifically, we are focusing on the ban and punishment of genetic tests to clarify possible paternity. We firmly reject such criminalization. Existing laws already set high hurdles for a putative father to clarify paternity; Obstacles that are to be further increased with the present draft.
In our view, it should be an essential task of the state to reconcile biological and social paternity. The legislature should also ensure that the child's right to know his or her parentage, as laid down in the UN Convention on the Rights of the Child (UN-CRC), is respected. ZGB and GUMG, on the other hand, want to prevent the clarification of doubtful paternity as far as possible - such clarifications are now to be punished with imprisonment for up to three years (nArt. 55a GUMG).
Such efforts are obviously not in the best interests of the child. His right to knowledge of his parentage and the right to care by his parents (Art. 7 UN CRC) is significantly restricted if his parents (specifically his father) make it practically impossible to establish paternity. In addition, the child's and father's right to family life (Art. 8 ECHR and related ECtHR case law, Art. 9 UN CRC, Art. 13 I BV) is impermissibly impeded, if not made impossible.
The Federal Council states that the punishment for a paternity clarification is about protecting the personality of the person concerned. We do not see how the personality of affected fathers and children should be protected. An affected child has an inherent interest, protected by national and international law, in the clarification of his parentage and in living with his parents. Biology determines who these parents are, not the state and not the parent who gave birth to the child (at least we have not [yet] discovered any provisions to the contrary in Swiss law). Likewise, the biological father has the right to family life with his child and the duty to provide for his emotional and material well-being.
Obviously, the criminalization of a highly understandable and ethically completely legitimate need for certain knowledge of paternity is primarily about protecting those people who derive financial and social benefit from the concealment of the actual parentage. These people not only act in a morally reprehensible manner by trampling on the right of children and fathers to have a relationship with one another, but also criminally if they surreptitiously obtain money or monetary benefits such as alimony payments under false pretenses. Instead of putting a stop to such people and their machinations, the legislature protects such people by making it extremely difficult and even criminalizing the clarification of the actual parentage. We firmly reject this.
Technological progress has given us the means to eliminate millennia-old doubts ('pater semper incertus est') with a probability bordering on certainty. We should take this chance; for the sake of our children and in the firm belief that relationships based on truth are more sustainable than those based on lies and denial.
That is why we demand that paternity clarifications can be carried out at any time and without obstacles. This also applies to those men who have not been designated as the father by the child's mother or the authorities, but rather suspect paternity themselves. Again, we would like to point out that this is primarily in the interest of the child, who has a right to know his parentage. For a legally relevant determination such as the acknowledgment or denial of paternity with all family law consequences, the authorities should establish a legally and medically flawless procedure. However, it makes sense to only start such an emotionally and financially costly process if there is a concrete reason for it that goes beyond suspicions and banal assumptions ('But the child doesn't look like you...').
In order to create clarity right from the start, we require that paternity be clarified with every birth and that only the biological father be registered as the father. With today's means, this can be done quickly, inexpensively and without any risk for the child or the parents. Such a clarification would save many children and their parents a lot of emotional suffering and create clear conditions for everyone involved.
Furthermore, we reject the exuberant paternalistic assistanceism, as expressed in Article 50, paragraphs 2 and 4 to 6. If you need advice on life, you should get it from a suitable place. This should not become a prerequisite for a genetic test.
With regard to the total revision of the GUMG, we therefore specifically demand:
- Deletion of nArt. 50 paras. 1, 2, 4, 5 and 6
- Deletion of nArt. 55 paragraphs a and c
- NEW: e.g. Art. 47: "After every birth, the biological parentage must be proven as the basis for determining paternity."
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