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Constitutional Court confirms Austrian citizenship for children born by American surrogate mother

by Rainer Bauböck (EUDO CITIZENSHIP co-director)

On 14 December 2011 the Austrian Constitutional Court decided in a case involving an American surrogate mother who had given birth to two children whose genetic parents are Austrian citizens residing in Vienna. After a removal of her uterus the Austrian mother could no longer bear children. 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 their Austrian parents and registered as Austrian citizens by the city of Vienna. When the mother claimed child benefits, the Ministry of Interior asked the city of Vienna to withdraw or nullify the Austrian nationality of the children arguing that surrogate motherhood was illegal under Austrian law and that the American Court’s decision that the Austrian mother was the legal parent of the child could therefore not be recognized by Austria, under whose law the mother is the person giving birth to the child.

The Constitutional Court rejected this argument on four grounds. First, it pointed out that the American decision determining legal motherhood of the Austrian genetic mother was taken without reference to Austrian law and was valid under norms of international private law. Second, it rejected the argument that the Austrian law prohibiting surrogate motherhood was part of Austria’s public order (ordre publique), which could have allowed to override the American decision. The Court pointed out that the federal law on procreation medicine does neither have constitutional status nor protect fundamental rights.  Third, the Court stated that the American surrogate mother cannot be forced into the position of the legal mother against her will by Austrian law. Finally, it 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 relevant concern in determining their nationality.

Read the full judgment (in German language)

Read a summary report by Austrian Public TV (ORF)