1In the fulfilment of its duties, the Confederation shall take account of the needs of families. It may support measures for the protection of families.
2It may issue regulations on child allowances and operate a federal family allowances compensation fund.
3It shall establish a maternity insurance scheme. It may also require persons who cannot benefit from that insurance to make contributions.
4The Confederation may declare participation in a family allowances compensation fund and the maternity insurance scheme to be compulsory, either in general terms or for individual sections of the population, and make its subsidies dependent on appropriate subsidies being made by the Cantons.
Art. 116 BV — Family
#Overview
Art. 116 BV empowers the Confederation to protect families and to implement family social policy. The constitutional provision contains four paragraphs with different mandates for action.
What does the provision regulate? Art. 116 BV requires the Confederation to take into account the needs of families in all its tasks (paragraph 1 sentence 1). It may support measures for the protection of families (paragraph 1 sentence 2) and enact regulations on family allowances (paragraph 2). The constitutional mandate for maternity insurance is formulated as binding: the Confederation «shall establish maternity insurance» (paragraph 3). These differences show varying degrees of intensity in federal competences (Gächter/Filippo, BSK BV, Art. 116 N. 4).
Who is affected? The concept of family is to be understood broadly and encompasses all forms of cohabitation with children — married couples, unmarried couples, registered partners and single parents (Gächter/Filippo, BSK BV, Art. 116 N. 3). The Federal Supreme Court confirmed that automatic priority rules in favour of one gender for family allowances are unconstitutional (BGE 129 I 265).
What are the legal consequences? The provision does not create direct claims for citizens, but gives the Confederation possibilities for action. Specifically, the Confederation has enacted the Family Allowances Act (FamZG, SR 836.2), which provides for minimum amounts of 200 francs per child per month (Art. 5 FamZG). Maternity insurance was implemented through revision of the Income Compensation Act (Art. 16b ff. EOG, SR 834.1) and grants 14 weeks of compensation at 80 percent of wages.
Practical example: A mother receives 80 percent of her previous wages from maternity insurance for 14 weeks after birth (maximum 196 francs daily according to Art. 16e EOG). At the same time, the family is entitled to child allowances of at least 200 francs per month. If only the father works in the Canton of Fribourg, but the family lives in the Canton of Vaud with higher allowances, it can claim the difference in the canton of residence (BGE 129 I 265). Fathers, however, have no entitlement to income compensation after birth (BGE 140 I 305).
The Constitution obliges the Confederation to examine the impact on families in all policy areas — from tax law to migration policy. However, this cross-cutting task does not establish competence, but is an instruction for action for existing federal competences (Gächter/Filippo, BSK BV, Art. 116 N. 5).
Art. 116 FC — Family
#Doctrine
#1. Legislative History
N. 1 Art. 116 FC derives from Art. 34quinquies of the former Federal Constitution (aFC), which was inserted into the Federal Constitution by the popular vote of 25 November 1945. The popular initiative «Für die Familie» («For the Family») sought comprehensive protection of the family and, in particular, the introduction of maternity insurance. In its report of 10 October 1944 (BBl 1944 I 865), the Federal Council noted that benefits should accrue primarily to the mother in confinement; a parental leave entitlement for fathers was not a subject of public debate at the time.
N. 2 In the course of the total revision of the Federal Constitution in 1999, Art. 34quinquies aFC was transposed in substance into Art. 116 FC without fundamentally altering its regulatory content. The Federal Council's Dispatch of 20 November 1996 (BBl 1997 I 1 ff.) characterises the provision as a competence norm that grants the Confederation far-reaching, though not unlimited, powers of action in the field of family policy. In reformulating Art. 116 para. 3 FC, the constituent legislator did not intend to extend the legislative mandate concerning maternity insurance in substance; in particular, no explicit mandate to introduce parental leave was given (BBl 1997 I 346; confirmed by BGE 140 I 305 consid. 7.2).
N. 3 Maternity insurance could only be realised with the entry into force of the revised Income Compensation Act (ICA) on 1 July 2005 — after decades of repeatedly failed legislative attempts. Three popular votes (1984, 1987 and 1999) had rejected more far-reaching proposals. The model ultimately realised was based on the parliamentary initiative 01.426 by National Councillor Triponez, which sought a politically viable solution exclusively for employed mothers (AB 2001 N 1615). In the area of family allowances, the Confederation enacted the Federal Act on Family Allowances (FAA) of 24 March 2006 (SR 836.2), which entered into force on 1 January 2009 and for the first time harmonised across Switzerland the previously non-uniform cantonal legal situation.
#2. Systematic Classification
N. 4 Art. 116 FC is a competence norm (→ characterisation pursuant to Section I of the FC Editorial Guidelines) that confers various powers of action on the Confederation in the field of family policy. It does not establish direct subjective rights of individuals; in particular, no direct entitlement to family allowances and no individually enforceable obligation of the Confederation to act can be derived from it (BGE 129 I 265 consid. 5.1). The provision is situated in the chapter «Social objectives and social security» (Chapter 3, Section 2 of the FC) and must be systematically distinguished from the non-justiciable social objectives under → Art. 41 FC (in particular para. 1 lit. c: support for the family), even though substantive overlaps arise.
N. 5 The provision contains several competence norms of differing nature and binding force: para. 1 is a programmatic cross-cutting clause without a substantive legislative mandate; para. 2 contains a concurrent legislative power of the Confederation in the area of family allowances; para. 3 sentence 1 contains a binding constitutional mandate to establish maternity insurance; para. 3 sentence 2 and para. 4 are enabling norms formulated permissively («may»). This differentiation is decisive for the question of enforceability (Mader, BSK FC, Art. 116 N. 2 ff.; Mahon, St. Gallen Commentary FC, 4th ed. 2023, Art. 116 N. 4).
N. 6 In relation to the cantons: for as long as and to the extent that the Confederation does not make exhaustive use of its concurrent power under para. 2, the cantons may legislate autonomously in the area of family allowances (BGE 129 I 265 consid. 3.1). With the entry into force of the FAA on 1 January 2009, the Confederation has exercised its power under para. 2 comprehensively for the non-agricultural sector. Cantonal supplementary benefits — such as allowance rates higher than the federal minimum — remain expressly permissible under Art. 20 FAA. ↔ Art. 3 FC (cantonal powers), → Art. 49 FC (supremacy of federal law).
N. 7 In the area of maternity insurance (para. 3), this concerns an exclusive federal power that was exercised exhaustively with the ICA of 2005. The expression «shall establish» («institue», «istituisce») used in Art. 116 para. 3 sentence 1 FC is to be read as a constitutional mandate that leaves the federal legislature no free choice as to whether to act, but grants considerable discretion with regard to the manner of implementation (BGE 140 I 305 consid. 7.2; Mader, loc. cit., N. 12 on Art. 116 FC).
#3. Constituent Elements / Normative Content
Paragraph 1: Consideration of Family Needs
N. 8 Art. 116 para. 1 FC contains two directives: first, a cross-cutting clause obliging the Confederation to take account of family needs in the performance of all its tasks; and second, an enabling authority for protective measures. The cross-cutting clause is not confined to social legislation but applies across all subject-matter areas (tax law, spatial planning, education law, etc.). The concept of «needs of the family» is open-textured; it encompasses both material and immaterial-social needs. «Family» is to be defined autonomously under constitutional law and is not restricted to the model of the nuclear family (parents and biological children) (Mahon, St. Gallen Commentary FC, 4th ed. 2023, Art. 116 N. 10 ff.; Wortha, Schutz und Förderung der Familie, 2016, para. 619).
N. 9 The duty of «consideration» is substantively weak: it establishes neither an obligation to achieve a particular result nor a prohibition on measures that burden families. It is programmatic in nature and does not give rise to an individual right to judicial enforcement (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 2745). «Measures to protect the family» within the meaning of sentence 2 may be of a financial or normative nature; the permissive («may») formulation makes clear that this is an enabling authority, not a mandate.
Paragraph 2: Family Allowances
N. 10 Art. 116 para. 2 FC confers on the Confederation the power to enact provisions on family allowances and to operate a federal family compensation fund. «Family allowances» (allocations familiales / assegni familiari) are periodic cash benefits intended to partially offset the financial burdens arising from children; they include in particular child allowances, education allowances, birth allowances and adoption allowances (cf. Art. 3 FAA). The power is concurrent (not merely framework-legislative), meaning the Confederation may enact exhaustive federal regulations (BGE 129 I 265 consid. 5.1).
N. 11 The federal family compensation fund referred to in Art. 116 para. 2 second sentence FC has not yet been established. The FAA instead relies on a decentralised system of private and public family compensation funds (Art. 11 ff. FAA), which are subject to cantonal supervision. In agriculture, a federal regulation had existed since the Federal Act on Family Allowances in Agriculture (FAA-Agr; SR 836.1) of 20 June 1952, which the Federal Supreme Court has qualified as an early exercise of the concurrent power (BGE 129 I 265 consid. 3.1).
Paragraph 3: Maternity Insurance
N. 12 Art. 116 para. 3 sentence 1 FC contains a binding constitutional mandate: «The Confederation shall establish maternity insurance.» This imperative formulation differs from the permissive formula in paras. 1 and 2 and obliges the legislature to act. This mandate has been fulfilled since 1 July 2005 with the revised ICA (Art. 16b ff. ICA). Maternity insurance is tied to biological motherhood (confinement and the subsequent recovery and breastfeeding period), not to social parenthood (BGE 146 V 378 consid. 4.3; BGE 140 I 305 consid. 10.1).
N. 13 The concept of «maternity insurance» leaves the legislature discretion as to the modalities. The Federal Supreme Court has clarified that, according to the intent of the constituent legislator, Art. 116 para. 3 FC does not provide a sufficient basis for a general parental leave scheme (BGE 140 I 305 consid. 7.2); the introduction of paternity or parental leave would require a statutory basis, which the federal legislature only created in 2020 with the introduction of two weeks of paternity leave (Art. 16i ff. ICA, in force since 1 January 2021) — based on Art. 116 para. 3 FC in conjunction with the general social legislation competence.
N. 14 Art. 116 para. 3 sentence 2 FC empowers the Confederation to also require contributions from persons who cannot benefit from the insurance benefits. This concerns in particular men, who by self-definition cannot draw maternity benefits. The provision justifies the solidarity financing principle under which the income compensation fund (IC Fund) is financed by contributions from all insured persons. The Federal Supreme Court has not objected to this construction (BGE 146 V 378 consid. 4.3).
Paragraph 4: Declaration of Compulsory Membership and Conditionality Clause
N. 15 Art. 116 para. 4 FC grants the Confederation two further enabling powers: first, it may declare membership of a family compensation fund and maternity insurance compulsory generally or for specific groups of the population. Second, it may make its benefits conditional on appropriate benefits from the cantons. The conditionality clause is an instrument of cooperative federalism; it allows the Confederation to encourage cantons to participate financially without circumventing the constitutional allocation of competences (Mahon, St. Gallen Commentary FC, 4th ed. 2023, Art. 116 N. 48 ff.).
#4. Legal Consequences
N. 16 Para. 1 produces no direct legal effects for private individuals. As a cross-cutting clause, it obliges the Confederation, when shaping all federal legislation, to incorporate family needs into the weighing process. A federal act is not unconstitutional merely because it results in families being more heavily burdened than unmarried persons or those without children; the cross-cutting clause does not require specific outcomes.
N. 17 Para. 2, as a concurrent competence norm, establishes a subsidiary cantonal legislative power: the cantons may legislate until and to the extent that the Confederation has exercised its power exhaustively. With the FAA (SR 836.2), the Confederation has laid down minimum rules for employees and self-employed persons (minimum amounts for child allowances and education allowances pursuant to Art. 5 FAA). Cantonal regulations providing for higher rates remain permissible (Art. 20 FAA). If a cantonal family allowances regulation violates fundamental rights — in particular the principle of equal treatment under → Art. 8 FC — it is unconstitutional and must not be applied in the individual case (incidental review of norms: BGE 129 I 265 consid. 2.3, consid. 3.5).
N. 18 Para. 3 contains a constitutional mandate that was fulfilled upon the entry into force of the ICA in 2005. From the constitutional basis it follows that federal acts giving effect to maternity insurance are binding on the Federal Supreme Court pursuant to Art. 190 FC and cannot be annulled, even if their constitutionality is questionable (BGE 140 I 305 consid. 5). The Federal Supreme Court may, however, invite the legislature to amend an unconstitutional provision. Furthermore, the constitutional anchoring permits a teleological interpretation of the ICA: Art. 116 para. 3 FC serves to provide financial security during the recovery and breastfeeding period following birth, which is to be drawn upon when interpreting Art. 16c para. 2 ICA (deferral of maternity benefit) (BGE 142 II 425 consid. 5.4).
N. 19 Cantonal implementing provisions on maternity insurance may not make the realisation of federal law unduly difficult or prevent it; otherwise they violate → Art. 49 para. 1 FC (BGE 142 II 425 consid. 6.2).
#5. Contested Issues
a) Nature of the Power under Para. 2: Framework Power or Full Federal Legislative Power?
N. 20 Legal scholarship has debated whether the power under Art. 116 para. 2 FC confers on the Confederation a full concurrent federal legislative power or merely a framework legislative power. Mahon (St. Gallen Commentary FC, 4th ed. 2023, Art. 116 N. 28 ff.) takes the view that it is a concurrent power not restricted to framework principles. Mader (BSK FC, Art. 116 N. 10) agrees. The Federal Supreme Court expressly held in BGE 129 I 265 consid. 5.1 that the power under Art. 116 para. 2 FC is concurrent and not limited to the enactment of principles. The minority view, which would assume a mere framework power, has found no significant following.
b) Parental Leave and the Constitutional Mandate of Para. 3
N. 21 The central contested question regarding para. 3 concerns the scope of the constitutional mandate: does «maternity insurance» also encompass paternity or parental leave? Perrenoud (La protection de la maternité, 2015, p. 1173) and Imhof (in: Das europäische Koordinationsrecht der sozialen Sicherheit und die Schweiz, 2006, para. 164) take the view that Art. 116 para. 3 FC provides a sufficient basis for parental leave and that both situations (military service and maternity) should be treated comparably within the framework of the ICA. Mader (BSK FC, Art. 116 N. 12) and Mahon (loc. cit., N. 71 on Art. 34quinquies aFC, applied to Art. 116 FC) argue, by contrast, that the constitutional mandate is limited to maternity protection in the biological sense and leaves the introduction of parental leave for fathers open but not mandatory. The Federal Supreme Court confirmed the latter view in BGE 140 I 305 consid. 7.2: whether Art. 116 FC would provide a sufficient constitutional basis for parental leave could be left open, since the legislature had in any event not opted for it and that decision did not violate mandatory constitutional law (in particular → Art. 8 para. 3 FC).
c) Prohibition of Discrimination and Maternity Insurance
N. 22 It was disputed whether the exclusion of fathers from maternity benefit constitutes impermissible discrimination under → Art. 8 para. 3 FC or Art. 14 in conjunction with Art. 8 ECHR. Steiger-Sackmann (Recht der Sozialen Sicherheit, 2017, para. 32.65) and Subilia (AJP 2005 p. 1474) raised the question whether the equal treatment of the sexes requires a parity-based design. The Federal Supreme Court held in BGE 140 I 305 consid. 10.2 and BGE 146 V 378 consid. 4.3 that, in the absence of comparable situations, no discrimination exists: Swiss maternity insurance is tied to biological motherhood, not to social parenthood. Men do not suffer legal discrimination because no comparable situation can arise in their case. The ECtHR (judgment Markin v. Russia of 22 March 2012 [30078/06, Grand Chamber]) confirmed this distinction between maternity leave and parental leave.
d) Priority Rule in Cases of Concurrent Claims and Inter-Cantonal Conflicts
N. 23 Under the former, fragmented cantonal law, it was disputed how to proceed in cases of concurrent claims between employed spouses. Several cantons (including Fribourg) had given priority to the «father». The Federal Supreme Court held in BGE 129 I 265 consid. 3.5 that such rules were incompatible with → Art. 8 para. 3 FC and declared the coordination rules of Regulation (EEC) No 1408/71 applicable by analogy as an inter-cantonal conflict-of-laws rule (BGE 129 I 265 consid. 5.3). With the entry into force of the FAA in 2009 (Art. 6 f. FAA), this issue has been addressed by statute.
#6. Practical Notes
N. 24 For employees and self-employed persons: maternity benefit under Art. 16b ff. ICA amounts to 80% of the earned income prior to confinement, subject to a maximum of CHF 196 per day (as of 2024). The entitlement arises on the day of confinement (Art. 16c para. 1 ICA) and lapses after 98 days (Art. 16d ICA), subject to the deferral provided for in Art. 16c para. 2 ICA in the event of a prolonged hospitalisation of the newborn. Self-employed persons have no entitlement to operating allowances in addition to maternity benefit (BGE 146 V 378 consid. 3.1).
N. 25 For family allowances, a minimum federal scheme has applied since 2009 (FAA): child allowances of at least CHF 200/month, education allowances of at least CHF 250/month (Art. 5 FAA). The cantons may set higher rates. Where both parents have concurrent claims, cumulation is generally impermissible (Art. 7 FAA); the prohibition on cumulation does not apply to allowances from international organisations (BGE 140 V 227 consid. 3.3). Self-employed persons are in principle entitled under Art. 8 ff. FAA.
N. 26 For cantons: cantonal regulations may not undermine federal law. In particular, cantonal salary replacement schemes for civil servants may not have the effect of making the deferral of maternity benefit opened up by Art. 16c para. 2 ICA factually impossible. Otherwise they violate → Art. 49 para. 1 FC (BGE 142 II 425 consid. 6.1 f.). A medically certified incapacity for work following confinement, combined with a deferred maternity benefit, gives rise to an entitlement to salary replacement as in the case of illness (BGE 142 II 425 consid. 7.1).
N. 27 Review of fundamental rights: since Art. 116 FC does not establish subjective rights, a violation of this provision cannot be pleaded directly. The review of cantonal family allowances regulations for their constitutionality is conducted by way of incidental review of norms, based on → Art. 8 FC (equality before the law and prohibition of discrimination), → Art. 9 FC (prohibition of arbitrariness) or → Art. 49 para. 1 FC (supremacy of federal law). Federal acts — in particular Art. 16b ff. ICA — are binding on the Federal Supreme Court pursuant to → Art. 190 FC and cannot be annulled.
N. 28 ECHR references: Art. 116 para. 3 FC on maternity insurance is closely connected to Art. 8 ECHR (respect for family life). According to the case law of the ECtHR (Markin v. Russia, 22 March 2012 [30078/06]), there is no obligation to introduce parental leave; where such leave exists, it must be designed without discrimination. The exclusion of fathers from maternity leave in the strict sense is permissible under the Convention (BGE 140 I 305 consid. 9.2.1, BGE 146 V 378 consid. 4.3).
Art. 116 Cst. — Family
#Case Law
#Family Allowances and Gender Equality
BGE 129 I 265 — 11 July 2003 — Unconstitutionality of a cantonal provision that automatically grants family allowances to the father in case of competing claims between gainfully employed spouses. The Federal Supreme Court held such a gender-specific priority rule to be incompatible with Art. 8 para. 3 Cst. (equality between men and women). The decision is fundamental for understanding the constitutional prohibition of discrimination in family allowance law.
«With regard to Art. 8 para. 3 Cst., however, the gender of potentially entitled persons may not serve as a distinguishing criterion. There is no permissible reason to grant Fribourg family allowances to dual-earner married couples only when the husband works in the canton, but not when only the wife fulfils this requirement.»
#Maternity Insurance and Parental Rights
BGE 140 I 305 — 15 September 2014 — No paternity compensation under Art. 16b EOLA despite constitutional family protection guarantee. The Federal Supreme Court denied fathers' entitlement to income replacement benefits after birth and emphasised that Art. 16b EOLA exclusively governs maternity compensation, but not general parental leave. The provision is directly based on Art. 116 para. 3 Cst., which mandates the Confederation to establish maternity insurance.
«Art. 16b EOLA does not contain parental leave as it exists in other (European) countries, but exclusively governs the mother's entitlement to compensation after birth.»
BGE 146 V 378 — 22 June 2020 — No entitlement to operating allowances during maternity for self-employed women. The Federal Supreme Court confirmed that the legislature consciously differentiated between employed and self-employed mothers and that the latter have no entitlement to additional operating allowances. This distinction was not qualified as unconstitutional discrimination.
«According to the clear will of the legislature, self-employed women during maternity, unlike self-employed service providers, have no entitlement to operating allowances in addition to maternity compensation.»
#Intercantonal Conflict-of-Laws Rules
In BGE 129 I 265, the Federal Supreme Court developed principles for resolving intercantonal conflicts of claims regarding family allowances. It referred to the EU coordination rules of Regulation (EEC) No 1408/71 as an appropriate solution: Primary jurisdiction lies with the canton of residence of the family, if an entitlement-triggering gainful activity is exercised there. In case of higher benefits in the other canton of employment, the differential amount can be claimed there.
«By analogous application of the mentioned conflict rules, the family allowance is to be obtained in the canton of residence of the married couple and the children, if one of the spouses exercises an entitlement-triggering professional activity there.»
#Constitutional Framework
The case law shows that Art. 116 Cst. grants the Confederation far-reaching powers in the area of family policy, but does not establish direct subjective rights. The provision is a competence norm that empowers, but does not oblige, the Confederation to act in the areas of family protection, family allowances and maternity insurance.
The cantons remain entitled to autonomous action as long as the Confederation does not exercise its powers. However, they are bound by fundamental rights, particularly the prohibition of discrimination under Art. 8 Cst.