The New Adoption Act in Switzerland
In Switzerland, the first recast of the law of adoption took place in the 1970s.
Today, 40 years later, Switzerland decides to adopt new rules and adapt its right to the new social patterns. On 28 November 2017, the Federal Council accepted the review of the law of adoption. On July 5, this new entitlement on the 1st January 2018 came into force.
The review of the aforesaid Law enshrines the desire to put the welfare of the child at the center of the adoption decision. This review takes into account the requirements of article 21 of the United Nations Convention on the rights of the Child.
As a result, the provisions of the Civil Code have changed. The conditions of adoption and the rules on the secrecy of adoption are relaxed.
The change of this Act gives the possibility for people living in a registered partnership or concubinage, to adopt the child of their partner (Article 264c CC). This facility is accentuated by the easing of legal provisions. More specifically, the minimum age of adopters is now less restrictive, from 35 to 28 years.
Furthermore, the joint adoption (article 264a of the CC) is possible for the married couples, that they have been in a common household for at least 3 years (5 years according to the former legislation). It is important to note that the joint adoption of a third party is forbidden to same-sex couples as well as to cohabiting partners. The only adoption of a child that is allowed, is the one in case a couple has been living together for at least three years. Thus, the paradoxical situation persists for homosexuals, since they have the right to adopt a child as long as they are single, but they lose it once they enter into a registered partnership.
The second amendment concerns the secrecy of adoption. The question of the individual needs of the person concerned, whether it’s about the adopted person, the biological parents or the adoptive parents, still remains.
The interests of these protagonists are opposed. It is necessary to decide what is the most important between the interest of maintaining secrecy or the interest of obtaining information. While other countries have been practicing for several years the open adoption, a system that allows biological and adoptive parents to have information about each other, in Switzerland, only confidential adoption was authorized.
According to the previous article 268c CC, only the adopted person could obtain information on the identity of the biological parents. This right was based on another right: the right to know its origins, deducted from art. 10 Al 2 Cst.
The previous article 268c CC gave the unconditional right to the adopted child, to obtain the data relating to his biological parents, even if they (biological parents) are opposed to any personal contact.
The Civil Code only required that the biological parents were informed before communicating the requested data to the child (art 268c Al 2 CC). The deduction from the previous art. 268 (c) CC, was that Swiss law reserved to the adopted child an absolute right to obtain information about his origins.
Now the biological parents will also be able to obtain information about their child, if he consents to it once he is an adult (new art. 268b al. 3). If the child is a minor, the consent of the adoptive parents will also be required (new art. 268B 2).
Consequently, it is interesting to note that the number of children adopted in Switzerland has been steadily declining in recent years. According to the figures of the federal statistical Office the number is four times lower than in 1980. For some specialists this decrease would be linked to an "improvement of child protection systems, family planning and the prevention of abandonment". Moreover, international adoption becomes more complicated due to the ratification of Switzerland in 2003 of The Hague adoption Convention. Thus, the new provisions on adoption are likely to facilitate adoption procedures and increase the number of adopted in Switzerland.