After more than 20 years, it emerged within the family that the daughter, who had been raised as a biological child, was not related to her parents by blood.

Even before the first contact between the alleged parents and their presumed daughter, the newborn girl was switched. In retrospect, neither the circumstances of the mix-up nor the biological parents of the alleged daughter could be determined. Ever since learning of the mix-up, the parents have been plagued by uncertainty as to what has happened to their biological child and how their biological child is faring. The mistaken daughter has also been worried about her biological parents ever since.

“The parents and the now adopted daughter filed a claim for a declaratory judgment and also sought compensation from the defendant for the adoption costs and damages for pain and suffering (of EUR 30,000 each) for the considerable psychological, albeit not pathological, stress caused to them by the child swap and the news about it.”

The claim of the three plaintiffs was upheld by the court of first instance. However, the Court of Appeal dismissed the claim for damages for pain and suffering because the plaintiffs’ emotional pain caused by the damage did not come close to that typically associated with the “loss” (death, serious injury) of a close relative from the nuclear family with whom there had been an intense emotional bond.

In its decision (4 Ob 208/17f), the Supreme Court awarded the plaintiffs damages of EUR 20,000.00 each for the pure emotional distress suffered as a result of the swap. The defendant was in any case guilty of gross negligence.

In this regard, the Supreme Court states: “The mix-up is to be assessed as a breach of the defendant’s obligation resulting from the hospital admission contracts to assign a newborn child to its biological mother immediately after its birth in a way that excludes any doubt and any mix-up and to hand it over after the treatment and care measures have been carried out. In view of the personal rights affected by the fulfillment of the contract and the need for protection of the parents and children involved, extremely strict requirements must be placed on the hospital’s obligation to take suitable precautions to rule out child mix-ups. The most severe impairment in question is certainly comparable to the killing or serious injury of a close relative. The substitution and – associated with this – the disappearance of the biological child is typically highly likely to lead to a grief reaction in the parents .”

This decision by the Supreme Court draws attention to the fact that child swapping is entirely possible and what options are open to those affected.