Fundamental Rights Section
any identification required later upon the mother's request (see e.g. Sect. 21 para. 1 lit. a
NÖ Krankenanstaltengesetz (Federal Hospitals Act of Lower Austria).
If a child is born anonymously or found in an incubator, the youth welfare agency is responsible to care for that child like for a foundling. The youth welfare agency is entitled to give
the child up for adoption (for incognito adoption see ruling of the Austrian Supreme Court of
August 10, 2006, file number 2 Ob129/06v). The above-mentioned decree of the Austrian
Ministry of Justice determines the approach to be adopted in the case of an anonymous
birth only in a very general and basic manner. It is left to the provinces to regulate the details.
The Ombudsman Board's research revealed that the present issue, whether a mother who
has first made use of the 'anonymous birth' option due to an acute emergency, should be
granted a period for reflection within which she can still opt for her child and how long such
period should be, is dealt with differently from province to province. Upper Austrian legislation, for example, provides a 14-day period; Lower Austrian legislation an 8-week period.
Viennese legislation seems to grant no period for reflection at all. This is unsatisfactory and
cannot be objectively justified.
The 'anonymous birth' option raises a number of sensitive and difficult questions which
were also discussed within a parliamentary committee of inquiry on September 22, 2000
(III-65 of the collection of exhibits to the protocols of the Austrian National Council, 21st legislative period). The protection of the child's and the mother's life and health must be
weighed against the child's right to know its parents.
On the one hand, the right to respect for private and family life pursuant to Art. 8 ECHR also
includes the child's right to know its parents. Also Art. 7 para. 1 of the UN Convention on
the Rights of the Child (Federal Law Gazette number 7/1993) protects the right of children
to know their parents' identity, as far as possible. On the other hand, the mother's and the
child's life and health must be protected during pregnancy and during the birth process. The
'anonymous birth' option in public hospitals is designed to prevent births without medical
intervention which endanger the mother's and the child's life and health. Furthermore, this
raises questions regarding the protection of further persons concerned, such as the natural
father or the adoptive parents.
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