Determination of citizenship after (supposed) birth through full surrogacy in the Ukraine

Abstract

In the judgment at hand the Court held that children (supposedly) born by a Ukrainian surrogate mother acquired Austrian citizenship by descent because their Austrian intentional parents were to be considered the legal parents of the children. Austrian substantive law regarding legal motherhood, namely § 137b ABGB, vesting legal motherhood with the women who gives birth, was (again) found to be inapplicable in a case of birth to a foreign surrogate mother. The Court did not examine the constitutionality of § 137b ABGB, but ruled that ‘in cases as the present one’ legal parenthood had to be determined according to the relevant foreign law.