The Past Future of Adoption

• Author: Monika Pfaffinger
• Position: Assistant Professor of Private Law with a focus on Civil Law, University of Lucerne
• Pages: 72-82

ANCILLA IURIS (anci.ch) 2016: 49 – Article 49

The Past Future of Adoption:

The Impact of Biotechnology on an Old Institution

I. Mission Creep: Unintended Effects of Biotechnology on Adoption

At first glance, adoption – one of humanity’s oldest institutions1 – has little to do with

modern biotechnologies. However, a second glance reveals notable interdependencies. This

paper deals with the unintended effects of biotechnologies on adoption and, as the title sug‐

gests, with the factor of time. As I would like to demonstrate, the past has already anticipated

the future.

The starting point is a striking coincidence in the development of Swiss law: in 1992, indi‐

viduals conceived by means of reproductive technologies were granted the fundamental

right to know their origins.2 This was made concrete in 2001 with the Reproductive Medicine

Act, and as a result, in 2003 the same right for adoptees was formally enshrined in written

law.3

It is astounding to think that the Law should first acknowledge the right to know one’s

origins in reproductive and genetic technology law and only later in adoption law, given that

the significance of knowledge of one’s origins has long been a serious issue for adoptees,

even back when genetic and reproductive technologies were still mere science fiction. The

central question for analysis here is thus: how is it to be explained that the right of adoptees to

discover the identity of their biological parents has only been recognized in the wake of the

much younger reproductive medicine generation?

1

* Assistant Professor of Private Law with a focus on Civil Law, University of Lucerne, and Vice President of

the Swiss Federal Coordination Committee for Family Affairs (CCFA). This article is a slightly adapted ver‐

sion of a paper presented on 8th October 2010 at the workshop “Mission Creep: The Unintended Effects of

Biotechnologies”, coordinated by Vaios Karavas and Michelle Cottier. A special thank you to the former,

my friend and colleague at the University of Lucerne, for our lively discussions.

1 On the history of adoption see Clausdieter Schott, Kindesannahme – Adoption – Wahlkindschaft, Rechtsge‐

schichte und Rechtsgeschichten (2009).

2 Cf. art. 24novies old Federal Constitution of the Swiss Confederation (Cst) and art. 119(2)(b) of the current

Cst.

3 See art. 27 Swiss Federal Act on Medically Assisted Reproduction (Reproductive Medicine Act, RMA) and

art. 268c Swiss Civil Code (SCC). Nowadays, a child has a general right to know his or her origins and not

only in the case of adoption or heterologous insemination: the Swiss Federal Supreme Court decided in the

Decision of the Swiss Federal Supreme Court DFSC 134 III 241 that this right is also applicable to children

whose filiation from the father is based on marriage with the mother (art. 252(2) SCC). Note that in 2012,

the Obergericht (2nd instance) of the canton of Lucerne decided that the husband too has a right to know

whether he is the biological father, even if he previously unsuccessfully challenged legal paternity:

OGer LU, no. 3B 12 33 of 18th September 2012, published in Luzerner Gerichts‐ und Verwaltungsentscheide

(LGVE) 2012, I, no. 6; see further below, III.B.2; with this judgement the parental generation of rights to

know about genetic truth is addressed.

Monika Pfaffinger*