Eugenics and the Law in Switzerland

Even though Switzerland recently made the headlines for its alleged role during the Second World War, its history remains little known to foreigners. Perceptions of centuries of peace, economic prosperity and political neutrality did not help to raise interest in the past or destiny of such a quiet country. However, academics the world over have yet to become fully aware of Switzerland’s pioneering role in eugenics during the twentieth century. Such matters as the sterilization or castration of the unfit and the eugenical prohibition of matrimony were openly discussed and put into practice before the Second World War. The aim of this short study of eugenics and the law in Switzerland is to provide a brief outline of this history with references for further study.

During the last quarter of the nineteenth century the cantons and the Confederation were busy discussing the drafting of a Civil code, which was adopted in 1907.2 The clauses relating to marriage included the usual prohibitions contained in legal statutes, plus one on eugenical capacity. Article 97 section 2 states that the mentally ill should be absolutely unable to contract marriage. The clause is founded openly on eugenic grounds. Official documents, Supreme Court rulings and parliamentary debates have all stressed repeatedly that the dissemination of hereditary diseases should not be tolerated for the common good.3 Nevertheless, article 97 section 2 underwent a drastic change of interpretation after the Second World War. Without explaining exactly precisely why, the Supreme Court altered a 1922 ruling and stated that article 97 section 2 prevented the marriage of people who were unable to understand the duties and obligations of matrimony. The protection of the genetical well-being of the population was no longer thought of as a legitimate goal.4 The clause more or less fell into disuse for the next fifty years but is still valid. The government is considering abolishing it in the next revision of marriage law.5

Abortion has always been a matter of controversy in a country where a large part of the population is Catholic. It was nevertheless openly discussed in the 1920s when a parliamentary commission studied the reform of the abortion laws and wondered whether abortion could be authorized on eugenic grounds. The answer was negative. In the meantime the canton of Vaud legalized eugenic abortion in its criminal law. The clause acted as a so-called "fait justificatif": an abortion performed by members of the medical profession on eugenic grounds was not considered an offence. This article did not last long. The Confederation adopted its own penal code in 1937, which prevailed over cantonal criminal codes.6

Eugenic castrations were first performed in Zurich and St-Gall at the very end of the nineteenth century. The practice lasted until the First World War. Castration was afterwards applied to sexual delinquents and only upon request well into the 1950s.7

Sterilization thus became the most common feature of negative eugenics in Switzerland. Introduced in Zurich in the 1890s, it was thought of as a therapeutic measure which did not require explicit legalization. The existing legal framework allowed such an operation to be performed as long as it was in the best interest of the patient. Communes, which were confronted during the 1930s with an ever worsening economic crisis, thought otherwise. The numerous compulsory sterilizations of the poor and the destitute which followed forced cantons to adopt stricter administrative frameworks. The only canton which went as far as to adopt a new statute on the matter was once again the canton of Vaud in 1928.8 It is somewhat ironical that this famous and much vilified example of a eugenic health policy was adopted to protect the mentally insane from the communes’ unrestricted desire to sterilize their poor and destitute.

The parliamentary debates which took place at the time showed that sterilization was above all a medical matter. Parliamentarians spoke about common sense, not ethics. They all "knew" that the unfit tended to have children after their own image. The "unfit" were thought to be miserable, poor and, more often than not, insane. So what was wrong with sterilizing them? The medical profession had to be given the right to perform this operation when necessary. Surprisingly, when Nazi Germany showed its interest in 1934,9 the Confederation seemed barely aware of the Vaud experiment! It shows how little controversy the sterilization of the mentally ill caused before the war. The sterilization clause was abolished in the 1970s, which does not mean however that sterilization, either chemical or surgical is no longer performed anymore in Switzerland.

It seems somewhat surprising to the author that decades after adopting various eugenic policies, Switzerland actually restricted scientific research on that topic. Article 24 novies section 2 let.2 of the Constitution states that scientific research can not be used to modify certain features in children. This article is entirely circumstantial. It originated from the Green scare of the 1980s when all sorts of environmental worries made the headlines in Germany and the German speaking part of Switzerland. Voters’ initiative, sustained by the weekly Schweizerischer Beobachter, led to the modification of the constitution.10

Switzerland’s importance in the history of eugenics has frequently been overlooked. The author hopes that academics, after reading this short paper, will grasp that, despite what the French proverb says, quiet countries do have a history and that it is worth studying.

1. Jean-Francois Aubert, Petite histoire constitutionnelle de la Suisse, 4th ed, Berne, Francke, 1983; Nouvelle histoire de la Suisse et des suisses, 2nd ed., Lausanne, Payot, 1986.

2. Henri Carrard, "Etude comparative des législations civiles de la Suisse romande et celles de la Suisse allemande", Zeitschrioft des Bernischen Juristen-Vereins, nos 5-6, nov.dec. 1873, 133-179; Civilgesetzbuch. Expertenkommission, 2 vol., s.l.n.d. (1901-1903); Code civil suisse. Exposé des motifs de l’avant-projet du Département fédéral de Justice et Police, Berne, 3t, 1901-1902, "Message du Conseil Fédéral a l’Assemblée Fédérale concernant le projet de code civil suisse", Feuille Fédérale, 1904, IV, 1-98.

3. AFT 47 II 127 = JT 1922 I 194; 48 II 173; JT 1924 I 546; AFT 68 II 136 = JT 1942 I 595. Code Civil: exposé des motifs de l’avant-project du Département fédéral de Justice et Police, Berne, I, 1901, pp. 113-114. Bulletin sténographique de l’Assemblée Fédérale, Bern, XV-1 (1905), p.501.

4. AFT 73 II 167 = JT 1947 I 550.

5. Conseil Fédéral, "Message concernant la révision du code civil suisse", Feuille Fédérale, I, 1996, p.12. Eugenical counseling before marriage is and was virtually unknown in Switzerland. The author has found a small office in Lausanne which provided eugenics education on a voluntary basis during the 1930s. Its lack of success led to its speedy closure. "Consultation medicale matrimoniale", Revue suisse d’hygiène, 12 (1932), p.457.

6. Alex Pedrazzini, L’euthanasie: de l’avortement eugénique à la prolongation de la vie, PhD Thesis, Lausanne University, Locarno, Impr. Pedrazzini, 1982, pp.62-63. To my knowledge, eugenic abortion was legalized in former Yugoslavia too.

7. Compte-rendu, Revue médicale de la Suisse romande, 26 (1906), p.305, 27 (1907), p.575 and 32 (1912), p.319; Philippe Ehrenström, "La castration des malades mentaux", Médecine et hygiène, 49 (1991), pp.1270-1273; Auguste Forel, Homme et fourmi, Lausanne, Imprimerie populaire, 1923, p.37; Francois Naville, "Etude sur la castration et les stérilisations thérapeutiques et prophylactiques en médecine sociale et en psychiatrie", Revue médicale de la Suisse romande, 45 (1925), pp.609-625; Philippe Rodrick, "Castrations a Genève", La Suisse, 26 mars 1991; Paul Ruggli, Les résultats de la castration thérapeutique sur les aberrations sexuelles, MD thesis, 1943.

8. Philippe Ehrenström, "Eugenisme et santé publique: la stérilisation légale des malades mentaux dans le canton de Vaud (Suisse)", History and Philosophy of the Life Sciences, 15 (1993), pp.205-227; Anna Gossenreiter, "Die Sterilisation in den 1920er and 1930er Jahren als Sozialpolitik und medizinisches Mittel", in Rudolof Jaun, Brigitte Studer éds., Weiblich-Männlich, Zurich, Chronos Verlag, 1995, pp.231-244.

9. Philippe Ehrenström, op.cit., pp.223-226.

10. Bulletin officiel du Conseil des Etats, 1990, pp.477-493; Bulletin officiel du Conseil national, 1991, I, pp.556-567; "Commission de’experts pour la génétique humaine et la médecine de la reproduction: rapport au Département fédéral de l’intérieur et au Département fédéral de justice et police", Feuille Federale, 1989, III, 986-1169; Rainer J. Schweizer, Peter Saladin, "Art. 24 novies", Constitution fédérale de la Confédération suisse, leaflets, May 1995.