Constitutional Court Turns Down Insemination-Ban for Lesbian Couples

18/01/2014
Submitted by Rechtskomitee LAMBDA (RKL)

Rechtskomitee LAMBDA (RKL): “A great day for human rights”

Rechtskomitee LAMBDA (RKL), Austria’s civil rights organisation for homo-, bisexual and transgender people, celebrates the fifth victory of its registered-partnership-litigation-offensive. As the first supreme court in the world doing so the Austrian Constitutional Court (the world´s oldest constitutional court) turned down the statutory ban on donor insemination for lesbian couples as violating human rights.

After hyphens in double-barrelled names, the adoption of a double-barrelled name after performance of registered partnership, after wedding vows and best men and after the office-room-compulsion the Austrian Constitutional Court for the fifth time now orders equal rights for registered partnerships and marriages in a case represented by RKL-president Dr. Helmut Graupner as part of RKL´s registered-partnership-litigation-offensive. The court found no valid reasons for the ban on donor insemination for lesbian couples. The judges saw the traditional family not affected by realizing a lesbian couple´s wish for a child. And the Constitutional Court took its ground-breaking judgment, delivered today, on the highly symbolic date of 10 December 2013, the International Day of Human Rights.

Christina Bauer, an Austrian citizen, and Daniela Bauer, a German citizen, in 2008 entered into registered partnership in Germany and then moved to the city of Wels in Upper Austria. Christina wants to receive a child through medically assisted procreation (insemination) and Daniela agrees. Both are very much looking forward to live a happy family-life with Christina’s child.

Appeals Court: Go to Germany!

But with introduction of registered partnership by 1st January 2010 Austria’s federal legislator explicitly banned medically assisted procreation for lesbian couples. Punishment: up to EUR 36.000,-- or up to 2 weeks in jail. This ban prohibits lesbian women medically assisted insemination just on the basis that they are living with a woman instead of a man. Thus they are legally barred from any procreation as it cannot reasonably expected from a lesbian woman to engage in sexual intercourse with a man, contrary to her sexual orientation and (for couples) contrary to their promise of faithfulness.

Daniela and Christina Bauer in 2010 asked the District Court of Wels to register Daniela’s consent to the insemination (this being, under Austrian law, one of the preconditions for lawful medically assisted insemination). The District Court refused in March 2010 and the Regional Court of Wels, on appeal, confirmed in June 2010. The appeals court saw neither a violation of the European Convention of Human Rights nor a violation of freedom of movement within the European Union (there is no such ban in Germany). The women could go to Germany and get inseminated there, the appeals court said.

The Supreme Court disagreed. Two times it has applied to the Constitutional Court to strike down the ban as unconstitutional (OGH 22.03.2011, 3 Ob 147/10d; OGH 19.12.2012, 3 Ob 224/12f).

In addition a lesbian registered couple from Vienna directly addressed the Constitutional Court with the same objective (G 44/2013).

Traditional families not affected

In its judgment delivered today the Constitutional Court stressed that same-sex couples (with children) are family (VfGH 10.12.2013, G 16/2013, G 44/2013, par. 36). Protection of the traditional family cannot justify the exclusion of same-sex couples from donor insemination as same-sex partnerships are not substituting marriage or opposite-sex cohabitation, but instead are complementing them (par. 54).

Also same-sex couples enjoy the fundamental right (under Art. 8 ECHR) to medically assisted procreation, the 14 judges said (par. 50). Restricting legal methods of medically assisted procreation to bridging fertility-problems in heterosexual partnerships and marriages is disproportionate and discriminatory (par. 47).

In its opinion sought by the Constitutional Court the federal government´s Bioethics-Commission had supported the repeal of the ban with a vast majority of ¾ of its members.

The judgment of the Austrian Constitutional Court (which was the first constitutional court in the world) is the first one worldwide in which a supreme court turns down the exclusion of lesbian couples from donor insemination as a violation of human rights.

Discrimination fires back on conservative party

Austria´s christian-democratic party´s (ÖVP) insistence on the ban led to an own goal for them as the Constitutional Court´s repeal of parts of the Medically Assisted Procreation Act leads not only to access of lesbian couples to donor insemination but also to liberalisations for heterosexual couples which the party consistently and successfully has resisted in the past years.

Couples won´t be required anymore to establish that they have engaged all possible and reasonable kinds of treatment in order to produce pregnancy by sexual intercourse (§ 2 par. 2). And in-vitro-fertilisation using donor sperm (instead of the partner´s sperm) will be legalized (§ 3 par. 1 & 2).

For the reintroduction of these regulations the conservative party now needs its coalition partner. If they find no consensus (also) the liberalisation for heterosexual couples will enter into force on 1 January 2015.

„The Constitutional Court’s judgment is great, historic and ground-breaking“, says Dr. Helmut Graupner, president of RKL and counsel of the four women, „Today is a great day for human rights and the rule of law“.


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