In Austria, medically assisted reproduction is legally permissible under certain conditions. Medically assisted reproduction means that a pregnancy is brought about by using medical methods other than sexual intercourse. However, the (strict) requirements of the Reproductive Medicine Act (FMedG) must be met. Not all people in Austria have access to medical measures to have a child. Single women who wish to have children, for example, do not. This can be viewed critically. In Germany, the legal situation is different. Time and again, there are single people who wish to have children who choose the route of “private” sperm donation and join forces or find each other on internet platforms. The idea may be to “help” with the desire to have children. This can result in (legally) challenging situations for all parties involved.
Who is eligible for medically assisted reproduction (e.g. sperm donation) in Austria?
According to the law, only certain people are allowed to make use of medically assisted reproduction: Married people, people living in a registered partnership or people who are in a cohabiting relationship. The reason why these methods are not permitted for single people is that the legislator does not want children to have only one parent available to them. In addition, medical measures should not be applicable simply because people want to use them. Pregnancy by “natural means” must either be unsuccessful/unlikely or unreasonable. E.g. due to a serious infectious disease. The possibility is also given if the partners are of the same sex. Sperm donation from a third person (not your own partner) is permitted if your own partner is not capable of reproducing or if the partners are of the same sex. Surrogate motherhood is not permitted in Austria. According to Austrian law, the mother is the person who gave birth to the child.
Specific information on sperm donation under the Reproductive Medicine Act (FMedG) and who becomes the father?
The law stipulates that sperm donation (in accordance with the FMedG) by third parties may only be carried out in a licensed hospital. The hospital must first examine the sperm donor for diseases and fertility.
The aim is to prevent one sperm donor from fathering a large number of children. For this reason, the sperm of one donor may be used for a maximum of three intended couples. Financial compensation that goes beyond mere reimbursement of expenses for a sperm donation is not permitted. In Austria, situations that you may be familiar with from movies, where a person finances their studies as a sperm donor, for example, are not conceivable.
The spouse, registered partner or partner of the woman receiving a sperm donation must explicitly consent to the sperm donation. This consent must be given in the form of a notarial deed. The legal father is not the the sperm donor, but the woman’s own partner. If the “legally correct way” is taken, the sperm donor cannot be established as the father. In this case, only the man who consented to the sperm donation can be established as the father. Whether the consenting man is the mother’s husband, partner or cohabiting partner is not decisive. Who the father of the child is has far-reaching consequences. Not only in terms of maintenance and inheritance law, but also in terms of family relationships and access to the child (custody and contact rights). From the age of 14, the child has the opportunity to find out the identity of the sperm donor from the hospital if he or she so wishes.
What about a “private sperm donation” and what the problems can be
What is new is that private sperm donation may also be “permitted” under certain conditions. Home insemination” does not fall within the scope of the FMedG because it does not take place with the “involvement of an outsider”. Private sperm donation using the so-called “cup method” or also by means of sexual intercourse and who then becomes a parent are now newly regulated by law. The sperm donor of this private sperm donation must knowingly provide his sperm for the purpose of creating a pregnancy. By law, the paternity of the sperm donor is now also excluded in the case of private sperm donation if the person who is married to the mother or in a registered partnership has given their consent (note: cohabiting partners are not covered). A specific form of consent, such as a notarial deed, is not required. Although this is simple, it is not particularly legally secure. From a lawyer’s point of view, a notarial deed is also recommended here as a precautionary measure. The parent is therefore the person who is in a registered partnership or marriage with the mother and has given their consent.
Private sperm donation for single people?
However, the situation is not covered by the law if a single woman goes down the route of private sperm donation and does not have a partner who has consented to the sperm donation and then becomes a parent. It is therefore worth considering carefully in your own interest whether private sperm donation (with a single person as the mother) makes sense. The crux of the matter is that there is again no legal regulation and it is unclear who will then become the father. In this case, it may very well be possible for the sperm donor to be legally established as the father. Life realities can change and the child can also make claims later on. In other words, on the man’s side, you may have to pay monthly child support for around 25 years because you wanted to fulfill someone’s wish to have children. On the woman’s side, you may be confronted with newly awakened and unwelcome feelings of fatherhood from a complete stranger, who then asserts custody and contact rights for the child and wants to make suggestions about preschool. Apart from the possible health risks that may be associated with a private sperm donation without adequate medical supervision. Likewise, the rights of the child with regard to the possibility of finding out its own identity and biological father do not appear to be guaranteed.
