Austria: Government adopts bill to allow artificial procreation for lesbian couples

Spermabecher 2The march of folly continues. Following a spurious and lamentably ill-founded decision by the Constitutional Court (Verfassungsgerichtshof), which, in clear excess of what its own reasoning might have warranted, had declared unconstitutional wide parts of the Law on Assisted Procreation, the Austrian Federal Government has now submitted a bill to enact the changes suggested by that judgment.

The prior law, albeit making some rather far reaching concessions to the “anyting-goes”-mentality holding sway among reproduction doctors, had nevertheless sought to maintain two important principles: first, it only allowed for “homologous” artificial procreation using only the gametes of the couple that were also to fulfil the role of “social” parents of the child to be made and, second, it allowed for this procedure only when that couple, for medical reasons and despite efforts to procreate in a natural way, was unable to have children.

This approach was dumped by the Verfassungsgerichtshof on the basis of  flimsy “equality” arguments, according which it was unfair that under certain circumstances couples could use donated sperm-cells, whereas the use of donated egg-cells was always prohibited (which in turn meant that a couple where the man was infertile could use artificial reproduction, whereas a couple where the woman was infertile could not). While it is true that the law was slightly inconsistent in this regard, the Verfassungsgerichtshof made a decision that went far beyond what was necessary and justifiable, and de facto opened the door for “heterologous” artificial procreation (i.e., involving the use of donated egg and sperm cells) without limits. The procedure can now be used indiscriminately by anyone, including same-sex couples that by nature (and not because of any deficiency) cannot procreate. From a solution of last resort, medically assisted procreation (including with donated sperm and egg cells) is transformed into a lifestyle choice: everybody has now a “right to a child”, including those who by nature cannot jointly be parents. Only the child so created, it appears, has no rights: it is deprived of its true parents; the relationship between parent and child is transformed from something natural into something artificial.

Quite conveniently, the ill-founded decision of the Constitutional Court provides a pretext for rushing the new law through the parliament without organising the broad and serious-minded debate that would be appropriate to the subject matter. The new bill pretends to give legal effect to the changes demanded by the Court, but, quite absurdly, it also quotes as one of the reasons for action the decision S.H. and Others  v. Austria of the European Court of Human Rights, although in that case the Court had (on appeal) actually decided that the existing Austrian legislation was not in violation of any “equality” requirements emanating from the Human Rights Convention. Moral corruption is, once again, accompanied by intellectual confusion.

For those reading German, we join links to the Decision of the Verfassungsgerichtshof, a scholarly article commenting it, and the legislative bill published today by the Federal Ministry of Justice.

Those wishing to comment on the bill, or to protest against it, can do so by writing a letter to the following address at the Federal Ministry of Justice: team.z@bmj.gv.at

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