Discrimination due to age NO IN-VITRO FERTILISATION SUBSIDIES FOR WOMEN OVER 40 Subsidies for an in-vitro fertilisation are very strictly regulated in Austria. Financial aid is possible only if the woman has not yet turned 40 at the beginning of the treatment. For men, the age limit is 50. A number of complaints to the AOB have demonstrated that this provision is problematic. The persons affected are often dependent on public financing to achieve their desire to have children. The Federal Minister of Health stated that this age limit for women is based on a recommendation of the Supreme Health Council from 1999. This recommendation refers to internationally recognised criteria that there is a lower success rate for this method for women above 40. These figures show that the success rate for IVF treatments slowly begins to fall as early as the age of 35. For this reason, the Austrian and German legislators have limited public financing of IVF treatments to women younger than 40. Government In a March 2009 ruling, the German Federal Social Court did not see any unconstitutional age or gender discrimination in this limit. Rather this provision takes the biological differences into account, according to which the fertility of women typically ends earlier than that of men. In determining the age limit, the legislator took the declining probability of successful fertilisation into account. Therefore, the legislator did not exceed the range of discretion accorded by legal policy. Case law These considerations under constitutional law are largely transferable to the legal situation in Austria. Therefore, no illegal age or gender discrimination could be determined. Nevertheless in the AOB’s opinion this constitutes a harshness of the law. Today it has become realistic that women slightly over the age limit and “healthy” women of the same age as well as women who are dependent on IVF can become pregnant. Situation has recommendations from 1999 changed 51