(Aug. 13, 2013) On July 30, 2013, Austria amended its Citizenship Act (Bundesgesetz mit dem das Staatsbürgerschaftsgesetz geändert wird [Amending Act to the Citizenship Act] (July 30, 2013), BUNDESGESETZBLATT I 136/2013), RIS [Rechtsinformationssystem, The Legal Information System of the Republic of Austria]). The reform improves the rights of children born out of wedlock to acquire Austrian citizenship from the Austrian father in situations when the mother is not an Austrian citizen. In addition, the reform provides clear-cut statutory rules on the effects of surrogate motherhood on the citizenship of the child.
Children Born Out of Wedlock
In its amended form, the Citizenship Act provides that a child born out of wedlock whose mother is not Austrian acquires Austrian citizenship at birth from the Austrian father, if paternity was acknowledged or judicially established within eight weeks after the birth (Bundesgesetz über die österreichische Staatsbürgerschaft (Staatsbürgerschaftsgesetz 1985 – StbG) StF: BGBl. Nr. 311/1985 (WV) [hereinafter Citizenship Act], § 7(1), RIS). If paternity is established at a later time but before the child is 14 years of age, then the Act provides that the child has the right to become naturalized, if the father was an Austrian citizen at the time of the birth and the child is not a security risk for Austria (id. § 12(2)).
Austria enacted these provisions in response to a decision of the Austrian Constitutional Court that held the preferment of children born in wedlock under the previous version of the Citizenship Act unconstitutional (Verfassungsgerichtshof, Nov. 29, 2012, docket no. G 66/12, The Constitutional Court of Austria website). The former version of the Citizenship Act made it very difficult for children born out of wedlock to claim Austrian citizenship from the Austrian father (id.).
Surrogacy and Citizenship
The amended Act also newly provides, in section 7(3), for the citizenship of children born abroad to a surrogate mother who is not an Austrian citizen when the child’s intended mother is an Austrian citizen. It provides that children born abroad acquire the Austrian citizenship at birth if, according to the law of the country where the child was born, an Austrian citizen is the mother or the father of the child, and if the child would be stateless unless it acquired the Austrian citizenship in this manner at birth.
This rule is an exception to the otherwise prevailing non-recognition of surrogate motherhood contracts in Austrian law. Section 143 of the Austrian Civil Code states that the woman who gives birth to the child is the mother (Allgemeines Bürgerliches Gesetzbuch, JUSTIZGESETZSAMMLUNG 949/1816 (as amended), RIS). Moreover, the Act on Reproductive Medicine prohibits the implantation of fertilized eggs except for the woman’s own eggs (Fortpflanzungsmedizingesetz, § 3(3), BUNDESGESETZBLATT 275/1992 (as amended), RIS). The new rule applies only to children born abroad. For children born in Austria, the mother of the child is defined by reference to the Civil Code’s definition of motherhood, thereby making the surrogate mother the legal mother of the child for purposes of the child’s acquisition of citizenship at birth (Citizenship Act, § 7(1)).
Section 7(3) comes close to expressing in statutory law what the Austrian Constitutional Court had ruled in a decision of 2011 (Verfassungsgerichtshof, Dec. 14, 2011, docket no. B 13/11, The Constitutional Court of Austria website). In that case, an Austrian woman who resided in Austria with her Italian husband had travelled to the State of Georgia in the United States to undergo in vitro fertilization procedures that resulted in the transfer of her embryo to a surrogate mother who had been engaged by contract to carry the child to term. Prior to the birth of the child, an order of declaratory judgment was obtained in Georgia that made the intended mother and her husband the “genetic and legal parents” of the child. (Id.)
After these facts became known in Austria, the Austrian authorities rescinded the previously registered Austrian citizenship of the child, on the grounds that Austrian public policy did not allow the recognition of the order of declaratory judgment issued in Georgia. The Austrian Supreme Court held, however, that Austrian public policy did not stand in the way of recognizing the Georgia order of declaratory judgment, even though Austrian law generally prohibits surrogate mother contracts and does not recognize the intended mother as the mother when Austrian law is governing. The Court was moved in its deliberations by the harm that would result to a child thus denied Austrian citizenship. (Id.)