In a referendum held on September 26, 2021, Swiss voters approved by a vote of 64.10% to 35.90% an amendment to the Swiss Civil Code that allows same-sex couples to enter into marriages. In addition, the amendment opens up sperm donation from a domestic sperm bank to married lesbian couples and extends the presumption of parenthood to the woman not carrying the child. Voter turnout was 52.60%. All cantons (Swiss states) voted in favor. The Swiss parliament had adopted the amendment on December 18, 2020; however, a group of conservative politicians had launched an optional referendum against the amendment. (Swiss Constitution art. 141.) The amendment is slated to enter into force on July 1, 2022.
Same-sex couples who are currently in a same-sex registered partnership may convert their registered partnership into a marriage or continue their current registered partnership. No new partnerships may be registered after the amendment of the Civil Code enters into force.
Background on Same-Sex Relationships in Switzerland
Since January 1, 2007, same-sex couples have been able to register their union at a civil registry office in Switzerland under the Same-Sex Partnership Act. In 2016, the parliament passed an amendment to the Civil Code that allowed partners in same-sex unions to adopt their stepchildren. The reform entered into force on January 1, 2018. The parliamentary initiative to allow same-sex marriage was submitted in 2013 and was stalled several times due to disagreements, including over whether a constitutional amendment would be necessary. On December 18, 2020, the Swiss parliament adopted the amendment to the Civil Code, which was subject to the optional referendum.
Recommendation from the Federal Council
The Federal Council, the Swiss government, recommended approving the amendment to abolish the remaining differences between same-sex couples in a registered partnership and married couples with regard to naturalization, reproductive medicine, and adoption. In the opinion of the Federal Council, a constitutional amendment was not necessary because the Swiss Constitution does not define marriage as a union between a man and a woman. (Explanation from the Federal Council at 25.)
Arguments from the Referendum Committee
The referendum committee argued that a constitutional amendment was necessary for the introduction of same-sex marriage because the Swiss Federal Supreme Court and the Federal Council have interpreted the term “marriage” in the Swiss Constitution as a union between a man and woman. They submitted that only a union between a man and a woman can naturally produce offspring, a fact that must be protected by the society and the state. In their opinion, reserving marriage to different-sex couples is based on biological differences and is therefore not discrimination. (Explanation from the Federal Council at 26.)
Furthermore, the committee submitted that allowing lesbian couples to use sperm donation would be unconstitutional because article 119 of the Swiss Constitution requires a couple to be “infertile” to be eligible. In the opinion of the committee, this would have negative effects on children, leading to identify issues and denying them a father. Lastly, the committee stated that opening up sperm donation to lesbian couples would lead other groups, such as homosexual couples and single persons, to claim a right to sperm donation in order to have a family, which would eventually lead to egg donation and the legalization of surrogacy. (Explanation from the Federal Council at 26.)