Case law Developments in PIL

Co-motherhood: The Austrian Constitutional Court on the Law of Parentage

This post was written by Verena Wodniansky-Wildenfeld, Vienna.


The Austrian Constitutional Court proceeds further on the way to equal treatment of heterosexual and homosexual couples. In its decision of 30 June 2022, it ruled that the requirements for establishing parenthood of same-sex partners must not be stricter than the ones for opposite-sex partners.

Facts of the Case

Two women lived together as registered partners with a child. After the child’s birth, the partner of the mother sought to be legally registered as the child’s parent. This request was refused by the authorities, as she could not be considered the “father” in the sense of the law and the child had been conceived naturally and not through artificial insemination, as required for the registration as a co-mother. Thereupon, she filed a complaint with the Austrian Constitutional Court on the grounds of the discriminatory nature of the legal provisions applied in the case at hand.

Legal Problem

Under the current Austrian statutory law, the registered female partner of the biological mother can be considered as the “other parent” only in the case of medically assisted reproduction (Section 144(2) ABGB).

In cases where the biological mother and her female partner are married to each other, as well as in cases where the birth was not preceded by medically assisted procreation, Austrian law does not provide any possibility for the acknowledgement of parenthood.

In order to legally become the “other parent”, the only way left is via “stepchild adoption” (section 197(4) ABGB), which is neither a duty nor a right. This situation differs from the case of heterosexual spouses: the man who is married to the mother at the time of the child’s birth is ex lege considered to be its father, never mind how the child is conceived. Moreover, a man may acknowledge fatherhood even if the child was conceived by someone else (whether through natural or medically assisted reproduction). Neither of these options are available to the wife or female partner of the biological mother.

Decision

The Austrian Constitutional Court considers this statutory situation as an unjustified unequal treatment of the mother’s female partner with regard to her legal status as “other parent” in comparison to a man in the same constellation. The court invoked in particular the right to private life and the principle of equality (Articles 14 and 8 ECHR, which form an integral part of Austrian constitutional law). Furthermore, it referred to the legal interest of the child (particularly Article 8 ECHR and the implementation of the UN Charter on the Rights of the Child) and that of a legal parent who wants to take responsibility for the child.

The Constitutional Court rejects the objections by the Federal Government, who argued that the unequal treatment under the law would be justified. According to the Court, a man’s fundamental aptitude for natural procreation is not sufficient to tie paternity to less stringent conditions than the parenthood of a woman who cannot have “fathered” the child. The Court was moreover not persuaded by the approval of the German legal situation by the ECtHR, which puts same-sex couples in a significantly worse position than the Austrian one due to the mere possibility of adopting the child.

Assessment

Following the decision concerning the implementation of marriage for homosexual couples, the direction the Constitutional Court has taken this time is hardly surprising. In stating that the unequal treatment of homosexual and heterosexual couples cannot be justified, the Court finds itself in agreement with large parts of the Austrian literature. Certainly, the Court does not deny the existence of factual differences between men and women with respect to natural procreative capacity. The prohibition of discrimination, however, prevents the legislature from attaching different legal consequences to this gender-specific distinction and the sexual orientation. The provision of the ABGB was therefore repealed as unconstitutional and as further consequence, will be ceased to be in force by the end of 2023.

The question arises which implications the decision will have for national conflict-of-law rules. De lege lata, the latter only explicitly governs descent from the father. A possible solution would be to apply the general clause in Section 1(1) IPRG and thus extend the rule on paternity to co-motherhood. Accordingly, the common nationality of both married parents or that of the child in the case of unmarried parents would determine the applicable law. Nevertheless, a clear solution would be preferable also in this matter.

It remains to be seen whether the Austrian legislator will find a solution that does justice to the desire for permanence of parenthood, the protection of the social family, and the best interests of the child.

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