This statement by Ingeborg Bachmann is the guiding principle 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 oppose this!
As part of the consultation process for the complete revision of the Federal Act on Genetic Testing in Humans (GUMG), we have issued the following statement:
The Swiss Association for Shared Parenting is the umbrella organization for parents' associations throughout Switzerland. The comprehensive revision of the Child Protection Act (GUMG) affects our interests as well as those of our children, which is why we are submitting our comments as part of this consultation. Specifically, we are focusing on the prohibition and criminalization of genetic tests to establish potential paternity. We strongly oppose such criminalization. Existing laws already place high obstacles on establishing paternity for a putative father; obstacles that the current draft proposes to further increase.
In our view, it should be a key task of the state to reconcile biological and social paternity. The legislature should also respect the child's right, enshrined in the UN Convention on the Rights of the Child (UNCRC), to know their origins. The Swiss Civil Code (ZGB) and the Swiss Federal Act on the Protection of Children (GUMG), however, aim to prevent the clarification of doubtful paternity as much as possible – and such clarifications are now even to be punishable by imprisonment of up to three years (Art. 55a GUMG).
Such efforts are clearly not in the child's best interests. The child's right to know their origins and their right to care by their parents (Article 7 UNCRC) are significantly restricted if the parents (specifically the father) are effectively prevented from establishing paternity. Furthermore, the right of the child and father to a family life (Article 8 ECHR and related ECtHR case law, Article 9 UNCRC, Article 13 I BV) is unduly hindered, if not entirely prevented.
The Federal Council states that the punishment for paternity testing is about protecting the personal rights of those involved. We fail to see how this protects the personal rights of affected fathers and children. A child has an inherent interest, protected by national and international law, in clarifying their parentage and living with their parents. Biology determines who these parents are, not the state, nor the parent who gave birth to the child (at least we have not yet found any contrary provisions in Swiss law). Likewise, the biological father has the right to a family life with his child, as well as the duty to provide for their emotional and material well-being.
The criminalization of a highly understandable and ethically entirely legitimate need for certainty about paternity is clearly primarily about protecting those who derive financial and social benefit from concealing true parentage. These individuals not only act morally reprehensibly by trampling on the right of children and fathers to a relationship, but also criminally when they fraudulently obtain money or benefits such as child support payments by misrepresenting the facts. Instead of putting a stop to these people and their schemes, the legislature protects them by making it extremely difficult and even criminalizing the investigation of true parentage. We categorically reject this.
Technological progress has given us the means to dispel millennia-old doubts ("pater semper incertus est") with near certainty. We should seize this opportunity; for the sake of our children and in the firm confidence that relationships based on truth are more lasting than those based on lies and denial.
Therefore, we demand that paternity tests be available at any time and without hindrance. This also applies to men who have not been named as the father by the child's mother or the authorities, but who themselves suspect paternity. We reiterate that this is primarily in the best interests of the child, who has a right to know their origins. For a legally relevant determination such as the establishment or denial of paternity, with all its family law consequences, the authorities should establish a legally and medically sound procedure. However, it seems sensible to initiate such an emotionally and financially demanding process only when there is a concrete reason that goes beyond mere suspicion and banal assumptions (e.g., "The child doesn't look like you...").
To ensure clarity from the outset, we demand that paternity be established at every birth and that only the biological father be registered as the legal father. With today's technology, this can be done quickly, cost-effectively, and without any risk to the child or the parents. Such an establishment would spare many children and their parents a great deal of emotional distress and create clear circumstances for everyone involved.
Furthermore, we reject the excessive paternalistic assistance as expressed in Article 50, paragraphs 2 and 4 to 6. Those who need life coaching should seek it from an appropriate source. This should not become a prerequisite for genetic testing.
With regard to the complete revision of the GUMG, we therefore specifically demand:
- Deletion of Article 50, paragraphs 1, 2, 4, 5 and 6
- Deletion of Article 55, paragraphs a and c
- NEW: e.g. Art. 47: "After every birth, biological descent must be proven as the basis for establishing paternity."
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