#1. Legislative History

N. 1 The constitutional article traces back to Art. 24novies old BV, which was adopted on 17 May 1992 with 73.8% of the vote. The popular initiative «against abuses of reproductive and gene technology in humans» (Beobachter Initiative) significantly shaped the discussion (BBl 1989 III 985). The Federal Council took up the concerns of the initiative in a direct counter-proposal, which was ultimately adopted (BBl 1989 III 1028).

N. 2 The total revision of the Federal Constitution in 1999 transferred Art. 24novies old BV to the current Art. 119 BV without material changes. The 2015 revision (BBl 2013 5853) supplemented lit. c with preimplantation genetic diagnosis, after the people adopted the corresponding constitutional amendment on 14 June 2015 with 61.9% of the vote. This development shows the dynamic adaptation of constitutional law to medical-technological developments while maintaining ethical principles.

#2. Systematic Classification

N. 3 Art. 119 BV is systematically classified in Title 2 «Fundamental rights, rights of citizenship and social objectives», but does not constitute a directly claim-creating fundamental right norm. Rather, it is a protective and legislative norm with fundamental rights-reinforcing effect. The provision concretises the protection of human dignity (→ Art. 7 BV) and personal freedom (→ Art. 10 BV) in the biotechnological sphere.

N. 4 The close connection to → Art. 118b BV (transplantation medicine), → Art. 119a BV (genome analysis in insurance and employment), and → Art. 120 BV (gene technology in the non-human sphere) shows the comprehensive constitutional regulation of biotechnology. Internationally, Art. 119 BV corresponds with the Council of Europe's Biomedicine Convention (BMK), whose ratification by Switzerland is still pending.

#3. Elements of the Offence / Normative Content

#a) Protective mandate (para. 1)

N. 5 Protection against «abuses» does not encompass a general prohibition of reproductive medicine and gene technology, but aims at their responsible application. The term «abuse» is open to evaluation and requires concretisation by the legislature. The Federal Supreme Court has clarified that the desire to have children represents an elementary manifestation of personal development and falls under the protective scope of personal freedom (BGE 119 Ia 460 E. 4).

#b) Legislative mandate (para. 2 preamble)

N. 6 The mandatory legislative mandate («shall issue regulations») obliges the Confederation to enact comprehensive regulations. The triad of protected interests — human dignity, personality and family — forms the normative framework. According to one view in the literature, the concept of family is to be understood broadly and encompasses family life according to → Art. 13 para. 1 BV and Art. 8 ECHR, not only the traditional nuclear family.

#c) Principles (para. 2 lit. a–g)

N. 7 Cloning prohibition (lit. a): The absolute prohibition covers both reproductive and therapeutic cloning. «Interventions in the genetic material» refer to germ line gene therapy, not to somatic gene therapies (Schweizer, Constitutional and international law requirements, p. 45).

N. 8 Species barrier (lit. b): The prohibition of chimera and hybrid formation protects the biological integrity of the human species. The use of animal mitochondria in IVF is disputed (Müller, Legal and ethical questions, p. 152).

N. 9 Reproductive medicine (lit. c): The subsidiarity clause («cannot be remedied by other means») is controversially discussed. Some commentators argue that infertility in the constitutional sense should be understood comprehensively as an unfulfillable desire to have children, including in same-sex couples. The RMA, in contrast, takes a more restrictive understanding.

N. 10 Surrogacy prohibition (lit. d): According to BGE 141 III 328 E. 7.4.1, the absolute prohibition forms the core of Swiss ordre public. Embryo donation is also prohibited without exception, in contrast to permitted gamete donation.

N. 11 Commercialisation prohibition (lit. e): The trade prohibition encompasses both paid and unpaid transactions. The distinction from permissible expense reimbursement must be made on a case-by-case basis (Büchler, Egg donation, p. 28).

N. 12 Informational self-determination (lit. f): Consent must be informed, free and specific. Legal exceptions exist in criminal proceedings (BGE 128 II 259) and where there are overriding interests of third parties.

N. 13 Right to knowledge of parentage (lit. g): According to BGE 128 I 63, this claim belongs unconditionally to adult persons. The RMA resolves the collision with promises of anonymity to gamete donors in favour of the child's right.

#4. Legal Consequences

N. 14 The direct prohibitions (lit. a, b, d, e) have direct effect and require no implementing legislation. Violations can result in criminal sanctions under the Criminal Code and special laws. The protective and legislative mandates primarily oblige the federal legislature but also have radiating effects on the application of law.

N. 15 In international relations, the surrogacy prohibition leads to recognition problems for parent-child relationships established abroad. The Federal Supreme Court has developed differentiated practice: genetic relationship enables recognition of the biological father (BGE 148 III 384), while the parent-child relationship with the intended mother regularly requires adoption.

#5. Disputes

N. 16 Concept of family: The central controversy concerns the scope of the constitutional concept of family. While some commentators advocate for a broad understanding in the sense of Art. 8 ECHR, which also includes unmarried and same-sex couples, the RMA takes a narrower concept of family. This divergence has direct effects on access to reproductive medicine.

N. 17 Concept of infertility: It is disputed whether social infertility (in same-sex couples or single persons) should be equated with medical infertility. Some commentators favour a comprehensive interpretation that includes every unfulfillable desire to have children. The opposing position requires a medical indication (Gächter/Rütsche, Health law, § 14 N. 567).

N. 18 Preimplantation genetic diagnosis: The constitutional amendment in 2015 only partially resolved the dispute over the admissibility of PGD. The scope of permissible genetic examinations and the definition of «serious diseases» remain controversial (Addor/Bühler, sic! 2004, p. 389).

#6. Practice Notes

N. 19 In cross-border situations, a distinction must be made between the substantive law assessment under Swiss law and the international private law recognition. The child's welfare may require a pragmatic solution in individual cases without relativising the constitutional prohibition.

N. 20 The dynamic development of biotechnology requires an evolutive interpretation of the constitutional norm. New procedures such as mitochondrial replacement or CRISPR/Cas9 technologies must be measured against existing principles, whereby the legislature must act if necessary.

N. 21 Advising physicians must inform about the legal limits of reproductive medicine in Switzerland, but may not actively promote treatments abroad if these would violate Swiss law. Information about legally compliant alternatives remains permissible and required.

#I. Surrogacy (Art. 119 para. 2 lit. d FC)

#1. Constitutional prohibition and ordre public

BGE 141 III 328 E. 7.4.1-7.4.3 of 14 September 2015: Fundamental decision on surrogacy The constitutional prohibition of surrogacy under Art. 119 para. 2 lit. d FC forms the core of Swiss ordre public in international private law. The provision is designed to prevent abuse and protect human dignity.

«Art. 119 para. 2 lit. d FC prohibits all forms of surrogacy. This prohibition forms the core of Swiss ordre public. It is intended to prevent reproduction from becoming the subject of commercial transactions and the instrumentalisation of the women involved.»

BGE 141 III 312 E. 4.2 of 21 May 2015: Ordre public in surrogacy The recognition of foreign decisions that sanction surrogacy agreements violates Swiss ordre public insofar as it circumvents the constitutional prohibition.

«The Swiss prohibition of surrogacy according to Art. 119 para. 2 lit. d FC belongs to the fundamental values of the Swiss legal order. Its circumvention through recognition of foreign court decisions would be incompatible with ordre public.»

#2. Registration of foreign documents

BGE 148 III 384 E. 5.2 of 1 July 2022: Surrogacy in Georgia In cases of surrogacy abroad by intended parents domiciled in Switzerland, Swiss law of descent applies. The parent-child relationship is established by operation of law with the surrogate mother upon birth. The intended father can establish the parent-child relationship through acknowledgment.

«If the intended parents domiciled in Switzerland carry out surrogacy in Georgia and Swiss law of descent applies, the parent-child relationship with the surrogate mother is established by operation of law upon the birth of the child. The intended father can establish the parent-child relationship through acknowledgment.»

BGE 141 III 328 E. 6.4 of 14 September 2015: Non-registration in case of circumvention A Californian birth certificate cannot be recognised if the recorded parent-child relationships to genetically unrelated parents arose in circumvention of the Swiss prohibition of surrogacy.

«Recognition of a foreign birth certificate that shows parent-child relationships to persons who are neither genetically nor legally related to the child would circumvent the prohibition of surrogacy under Art. 119 para. 2 lit. d FC and must therefore be rejected.»

#II. Genetic examinations (Art. 119 para. 2 lit. f FC)

#1. DNA profiles in criminal proceedings

BGE 128 II 259 E. 3.2-3.7 of 29 May 2002: Interference with fundamental rights through DNA profiling The creation of a DNA profile constitutes an interference with the right to physical integrity (Art. 10 para. 2 FC) and protection against misuse of personal data (Art. 13 para. 2 FC). Art. 119 para. 2 lit. f FC concretises these guarantees in the field of genetic examination.

«The taking of a buccal swab to create a DNA profile interferes with physical integrity. The storage and processing of genetic data violates the right to informational self-determination. These interferences require a legal basis and must be proportionate.»

BGE 145 IV 263 E. 3.3-3.6 of 24 April 2019: Proportionality of DNA profiles The proportionality of creating a DNA profile with regard to future criminal offences must be examined on a case-by-case basis. The severity of the offence committed and the risk of recidivism are decisive criteria.

«Art. 255 para. 1 lit. a CPC provides a legal basis for creating a DNA profile with regard to possible future criminal offences. Proportionality must be assessed on the basis of the severity of the triggering offence and the probability of future crimes.»

#2. Knowledge of descent

BGE 128 I 63 E. 2.1-5 of 4 March 2002: Right to knowledge of descent Art. 119 para. 2 lit. g FC guarantees every person access to data about their descent. This claim belongs to the adult adoptive child regardless of any balancing of interests.

«The claim to knowledge of biological parents belongs unconditionally to the adult adoptive child as an expression of personal freedom and based on Art. 119 para. 2 lit. g FC. No balancing with conflicting interests of the biological parents is to be undertaken.»

Judgment 5A_382/2021 E. 3.3 of 20 April 2022: Child welfare in paternity disputes The constitutional right to knowledge of descent collides with obstructive behaviour by a parent that prevents paternity clarification. Such behaviour cannot be attributed to the child.

«Behaviour by the mother that obstructs paternity clarification is obviously not in the child's interest and would collide with its constitutional claim to knowledge of its descent (Art. 119 para. 2 lit. g FC). Consequently, the mother's behaviour cannot be attributed to the child.»

#III. Reproductive medicine (Art. 119 para. 1 and 2 FC)

#1. Fundamental decision on reproductive technologies

BGE 119 Ia 460 E. 4-12 of 22 December 1993: Constitutional limitations General prohibitions of heterologous insemination and in vitro fertilisation violate personal freedom. Art. 24novies former FC (now Art. 119 FC) empowers the legislature to enact regulations, but does not prohibit every form of medically assisted reproduction.

«Restriction of access to methods of artificial reproduction affects personal freedom. General prohibitions of heterologous insemination and in vitro fertilisation cannot withstand personal freedom insofar as they are not justified by overriding public interests.»

#2. Scope of application and delimitations

Judgment 2C_39/2018 E. 2-4 of 18 June 2019: Further training in reproductive medicine The scope of protection of Art. 119 FC extends to medical practice in the field of reproductive medicine. Further training requirements for doctors serve quality assurance.

«Reproductive medicine is subject to special quality requirements. Further training requirements for doctors specialising in reproductive medicine and gynaecological endocrinology serve to protect patients and correspond to the constitutional mandate of Art. 119 FC.»

#IV. ECtHR case law on Art. 8 ECHR

#1. Surrogacy and family life

ECtHR decision D.B. et autres c. Suisse of 22 November 2022 (No. 58817/15) Refusal to recognise the parent-child relationship between a child conceived through surrogacy and the intended father violates Art. 8 ECHR if no alternative ways of recognition exist.

The ECtHR found: «Le refus de reconnaître l'acte de naissance établi légalement à l'étranger concernant le lien de filiation entre le père d'intention et l'enfant, sans prévoir de modes alternatifs de reconnaissance dudit lien, ne poursuit pas le but de l'intérêt supérieur de l'enfant.»

ECtHR decision S.C. et autres c. Suisse of 28 November 2023 (No. 26848/18) Inadmissibility decision: Subsequent adoption by the intended father cures the initial refusal of recognition. Adoption procedures provide sufficient alternative ways to establish the parent-child relationship.

#V. Development trends

The case law on Art. 119 FC shows a gradual adaptation to social reality while maintaining constitutional principles. While the prohibition of surrogacy is consistently enforced, the courts develop pragmatic solutions for cases where children have already been born abroad. The ECtHR case law increases pressure to create alternative ways of recognising parent-child relationships that respect the child's welfare.

In the field of DNA analysis, the balance between law enforcement interests and personality protection is continuously readjusted, with proportionality testing playing a central role. The right to knowledge of descent is recognised as a strong individual right that is subject to restrictions only in exceptional cases.