Women and Justice: Jurisdiction


Mutterschutzgesetz (Maternity Protection Act) (1979)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

Pregnant employees are prohibited from working during the eight-week period prior to giving birth and the eight-week period after giving birth. During this period, the mother is entitled to receive maternity pay, which is calculated as the employee’s average earnings during the 13 weeks prior to the prohibition of work. After the prohibition period, women may take an additional period of maternity leave, up to two years after the birth of the child. During this period, a mother (or father, if he has taken paternity leave, although both parents may not take leave concurrently) will not receive remuneration through her (or his) employer, although the parent taking leave may withdraw child allowance through social insurance during this time.  Pregnant employees and parents on maternity or paternity leave may not be terminated from employment during that time and for a period of four weeks after returning to work.  The Act also provides regulations for the type of work pregnant women, women who are breastfeeding, and women who have recently given birth may do (i.e., prohibition of certain physical work and manual labor, handling of chemicals, work where the woman must sit or stand for long periods with no break) and regulations regarding the times pregnant and breastfeeding employees may work (i.e., must not work between the hours of 8 p.m. and 6 a.m., nor Sundays or public holidays).

Gesamte Rechtsvorschrift für Fortpflanzungsmedizingesetz (Reproductive Medicine Act) (1992)

Abortion and reproductive health rights

Medically assisted reproduction is permissible only to married couples, or those in a registered partnership or cohabitation.  Further, it is only permitted to the couple if certain difficulties in conceiving exist, such as (i) all other possible or reasonable treatments to induce pregnancy through sexual intercourse are unsuccessful or hopeless; (ii) pregnancy through sexual intercourse would expose the spouse or partner to a serious risk of transmitting a serious infectious disease; (iii) the couple is two women living in a registered partnership; or (iv) for certain couples where there may be difficulty becoming pregnant or giving birth, or giving birth to a child with a hereditary disease (which would require the child be kept alive through constant use of modern medical technology, or has severe brain damage or severe pain that cannot be treated) due to genetic dispositions.  Surrogacy is not permitted Austria because medically assisted reproduction is only permissible within a marriage or registered partnership or cohabitation, and only the ova and the semen of the spouses, registered partners, or cohabitants may be used. There are two exceptional circumstances in which a third party’s genetic material may be used for medically assisted reproduction: (i) the semen of a third person may be used if the spouse, registered partner or cohabitant is not capable of reproduction, or if the couple is two women in a registered partnership; or (ii) the oocyte of a third person may be used if a woman, younger than 45, whom the pregnancy will be induced is otherwise not able to reproduce.

Domestic Case Law

Maria N. et. al. v. Ferenc D. Austria Supreme Court (2011)

Sexual violence and rape, Trafficking in persons

The defendant was convicted of trafficking in persons for the purpose of prostitution after the lower court found that he lured the victims from Hungary into Austria under the false pretext that they could work as cleaners in an Austrian Hotel and then threatened them with injury or death to force them to work as prostitutes. The Austrian Supreme Court upheld the conviction on appeal.

Unknown v. Austria Asylum Court (2012)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices

A female minor applicant whose home state was Afghanistan, together with her parents and four minor siblings, applied for international protection in Austria. The Federal Asylum Agency refused and the applicant appealed. The Asylum Court upheld the appeal and granted asylum. In particular, the Asylum Court noted that on return to Afghanistan, the applicant would, among other things, (1) receive no education, (2) be married to a man chosen by her father or grandfather, (3) not have the opportunity to lead an independent life in line with her beliefs, and (4) not have the opportunity to protect herself against violence and undesired restrictions.

T.M. et. al. v. Miroslava T. T. et. al. Austria Supreme Court (2009)

Sexual violence and rape, Trafficking in persons

The defendants were held guilty of violating several provisions of the Austrian Criminal Code after the lower court found that they acted as a criminal organization to recruit victims by means of extortion, massive violence, penalties for not performing sex work and threats and arranged for the victims’ transfer and accommodation in brothels in Austria. After an appeal on procedural grounds, the Austrian Supreme Court upheld the convictions.

C16 427.465-1/2012/7E Asylum Court (2012)

Forced and early marriage, Harmful traditional practices

The Applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, in part because the Federal Asylum Agency failed to adequately investigate and assess the dangers to the Applicant in Afghanistan. The Asylum Court found that the Federal Asylum Agency erred in summarily denying asylum based on the Applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court concluded that the Applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the Applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Specifically, returning to Afghanistan would mean that the Applicant would be raised to be a homemaker despite any wishes to have a career outside the home, would be married to a man chosen by her father or grandfather, and her freedom of movement and educational opportunities would be severely restricted. In granting the Applicant’s asylum claim, Austria’s Asylum Court considered both gender-specific and child-specific factors that were not brought forth by the Applicant but rather gathered from credible investigative sources.