The Austrian “Law on Reproductive Medicine” (“Fortplanzungsmedizingesetz”) which was passed by the Austrian Parliament in 1992 bans surrogacy method. Though surrogate motherhood is not mentioned explicitly, the law stipulates that egg cells can only be used for the woman whose body they were retrieved from.
Moreover, according to §137b of Austrian Republic’s Civil Code the mother of a child is always the woman who gave birth to this child, that is, – the surrogate mother – and not the contractor of surrogacy.
Hence, the Austrian law prohibits transfer of a fertilized egg cell in another woman’s body and defines the woman who gives birth to a child as the mother of a child. Since its enactment in 1992, the law has been slightly amended. However, changing the law in such a way as to allow surrogacy has never come up as an issue.
By this reason, many Austrian couples facing infertility problems turn to surrogacy overseas, namely in the countries allowing this method of fertility treatment. The question on status of the children born abroad as a result of international surrogacy programs sparked a lively discussion in Austria: whether the Austrian citizens are recognized in Austria as legal parents and if the children are consequently entitled to Austrian citizenship. Relevant embassies, social security authorities, and courts were involved in aforementioned disputes. Finally, in December 2011, the Austrian Constitutional Court has ruled that children born through surrogate motherhood contracts abroad are entitled to the Austrian citizenship (Case B13/11-10).
The Austrian Constitutional Court decided in a case involving an American surrogate mother who gave birth to two children whose genetic parents are Austrian citizen (a woman) and Italian citizen (a man) residing in Vienna. Because of removal of her uterus the Austrian mother could no longer bear children herself. The children became American citizens by birth in the USA and were recognized as the Austrian parents’ children by American courts. They were subsequently raised by the Genetic Parents and registered as Austrian citizens by the City (“Magistrat”) of Vienna. When the mother claimed child benefits, the Ministry of Interior asked the City of Vienna to withdraw the Austrian nationality of the children arguing that surrogacy was illegal under Austrian law and that the American Court’s decision establishing parental rights of the Austrian mother could therefore not be recognized by Austria.
The Constitutional Court rejected this argument on four grounds:
1. It pointed out that the American decision establishing legal motherhood of the Austrian genetic mother was taken without reference to Austrian law and was valid under norms of international private law.
2. The Court rejected the argument that the Austrian law prohibiting surrogacy was part of Austria’s public order (ordre publique) thus overriding the American decision. The Court outlined that the federal law on Assisted Reproductive Technology does neither have constitutional status nor protects fundamental rights.
3. The Court stated that the American surrogate mother cannot be forced into the position of the legal mother against her will by Austrian law.
4. Finally, it was pointed out that the Ministry of Interior had decided arbitrarily by neglecting scholarly opinion and case law on ordre publique and by completely neglecting the welfare of the children as a key concern while determining their nationality.