Changing direction: the struggle of regulating assisted reproductive technology in Austria

Abstract

From 1992 until 2015, Austria had a very restrictive Reproductive Medicine Law (FMedG, 1992) that prohibited a number of treatments such as egg donation, preimplantation genetic diagnosis (PGD), heterologous sperm donation for IVF/intracytoplasmic sperm injection (ICSI) as well as general access to assisted reproductive technology for same-sex couples. As one consequence of this rather prohibitive law, Austrian physicians active in the area of assisted reproductive technology co-operated with, or had daughter institutes in, countries with less restrictive legislation such as the Czech Republic and Slovakia, which are only a few hours’ drive away. For a long time, liberalisation of the Reproductive Medicine Law was blocked by the fierce and seemingly unresolvable struggle between the restrictive conservative party (ÖVP) and the permissive social democrats’ party (SPÖ). In 2014 the impasse, which had lasted for decades, was finally resolved in favour of a more liberal Reproductive Medicine Law that permits egg donation, PGD in some cases and heterologous sperm donation for IVF/ICSI and lesbian couples. Assisted reproductive technology treatments for single women and surrogate motherhood remain prohibited. The new Reproductive Medicine Law was heavily opposed by the Catholic Church, by some conservatives and by disability associations. By applying the concept of political culture, this paper explains why a liberalisation of the Reproductive Medicine Law was blocked for decades, and how the sudden policy change came about.

Introduction

This paper analyses how and why the Austrian political regulation of assisted reproductive technology, which, compared internationally, has been rather restrictive for more than 20 years was liberalised in 2014. In detail, the paper: (i) sketches the content and rationale of the past regulation; (ii) describes the impact of the restrictive law on couples and women seeking assisted reproductive technology treatment; (iii) describes the political configuration that was responsible for the restrictive law and outlines the underlying aspects of Austrian political culture that blocked liberalisation for so long; (iv) presents the activities of individual couples who appealed to national and European courts for change and describes the societal and political developments that supported the policy change; and (v) it sketches potential impacts of the new law on the practice of assisted reproductive technology in Austria.

Materials and methods

This paper is based on research carried out between 2007 and 2012 as part of the research project ‘Genetic Testing and Changing Images of Human Life’ (LIFE), which looked at the political and clinical domain of preimplantation genetic diagnostics, prenatal genetic diagnostics, abortion and assisted reproductive technology in Austria. A sub-project on assisted reproductive technology studied the political debate in 2011 concerning the liberalisation of the Austrian Reproductive Medicine Act of 1992 (FMedG 1992). For this analysis, a total of 16 semi-structured qualitative interviews were carried out in the winter of 2010/2011 with subjects in the political domain. This sample included ten politicians (three members of parliament, one minister, two assistants to members of parliaments, two assistants to the minister and one member of a non-governmental organization (NGO), three senior civil servants, one member of the Austrian Bioethics Commission and two NGO representatives. The interviews were recorded, fully transcribed and analysed with thematic analysis by EG (Griessler, 2012a). The paper also draws on a document analysis (by MH) of official statements of various stakeholders made in 2014 during the pre-parliamentarian evaluation process on the draft bill (Parlament, 2014) as well as on media reports of the decision-making process. Finally, the article draws on literature on aspects of Austrian political culture and previous work by the authors on assisted reproductive technology and biomedicine in Austria. Newspaper articles were used to sketch the immediate effects of the new law in 2015.

The prohibitive law of 1992

While Austria was amongst the vanguard of Western European countries when it liberalised its abortion law in 1974 and introduced a regulation that can be considered as highly permissive in international comparison1 (Gindulis, 2003, Knill et al., 2014), the Austrian law on assisted reproductive technology of 1992 was very restrictive in comparison to other European countries (Busardò et al., 2014, Hadolt, 2007). The FMedG was discussed in the political arena for a decade, namely between 1982 and 1992. The debate was mainly dominated by two questions: First, what forms of assisted reproductive technology should be permitted, and second, who should get access to these technologies (Hadolt, 2007)? The FMedG expressed and reinforced conservative attitudes by limiting assisted reproductive technology to traditionally structured families, and consequently was rejecting the creation of new family forms and discriminating against same-sex couples. Moreover, it banned certain procedures such as egg donation and surrogacy to protect women from exploitation. Accordingly, the law permitted assisted reproductive technology only within strict limits: (i) assisted reproductive technology was allowed Medical Ultimo Ratio only, i.e. if pregnancy by sexual intercourse is impossible because the woman and/or her partner have a medical condition; (ii) access to assisted reproductive technology was limited to married or co-habiting heterosexual couples; (iii) sperm donation was in general prohibited except for heterologous insemination, i.e. insemination with donor sperm if the husband or established partner is infertile; (iv) egg donation, donation of embryos and surrogacy were not allowed; and (v) preimplantation genetic diagnosis (PGD) was not explicitly regulated, but the FMedG only allowed genetic analysis if it was necessary to accomplish pregnancy. Therefore, analysis of the fertilized egg (blastocyst) was illegal but polar body diagnostics, which is, in a strict sense, not based on analysis of the fertilized egg and provides similar information, was not covered by the law (Bundeskanzleramt Österreich, 2012, Parlament, 1992).

Impact of FMedG 1992

What effects did the restrictive law have on individual citizens in terms of access to assisted reproductive technology? First, as stated above, the restrictive FMedG banned a number of procedures that were permitted elsewhere. Second, it excluded certain groups. Third, in Austria, assisted reproductive technology is partly funded by a public fund, the Austrian IVF Fund, which covers 70% of the cost. The combination of legal provisions and funding rules created a number of inequalities between user groups. Austrian women, couples, and physicians rather creatively developed strategies to deal with these disparities, which will be outlined in the following.

First, the ban of certain procedures created inequality between patient groups with different medical conditions and assisted reproductive technology needs. A way to deal with this situation was to use legal loopholes. In the case of PGD, a few Austrian physicians made use of such legal loopholes and offered polar body analysis as an alternative, which, as already mentioned, was not covered by the law (Griessler and Hager, 2012, p. 68).

Second, the law created inequality between people to whom access to assisted reproductive technology was granted and those who were excluded; it discriminated against same-sex couples as well as single people, unmarried people or people who were not in long-term partnerships.

Third, in combination with socio-economic disparities, the restrictive law created inequality between couples who could afford to evade the Austrian regulation by seeking treatment abroad (so-called ‘assisted reproductive technology tourism’) and those who could not. Austrians seeking assisted reproductive technology treatment travelled to other countries with less restrictive laws, e.g. Bulgaria, the Czech Republic, Rumania and Slovakia. However, less restrictive legislation is not the only reason behind assisted reproductive technology. Other reasons include cheaper services, greater anonymity, better quality of service and/or shorter waiting lists. Many Austrian physicians openly promoted assisted reproductive technology tourism by informing their patients about clinics in neighbouring countries – which sometimes were their own subsidiaries2 – or by referring them to these institutes. As a consequence, Austrian patients who could afford to travel for treatment were able to receive the whole range of modern assisted reproductive technology abroad (Griessler and Hager, 2012, Weikert, 2006).

Finally, the regulations of the public IVF Fund restricted funding through a number of clauses such as age limits or a certain number of IVF attempts (Griessler and Hager, 2012, p. 10).3 This created inequalities within the group of people who were not or no longer supported by the IVF Fund between those who could afford to pay for assisted reproductive technology services – at home or abroad – and those who could not.

The restrictions (particularly the prohibition of PGD) and inequalities were repeatedly criticised by stakeholders, particularly physicians, who called for a reform of the law. Other stakeholders criticised the Austrian regulation as hypocritical because wealthy couples would be treated with ART abroad. As one interviewee put it: ‘It is a typical Austrian situation! When I talk to obstetricians and to others, naturally they are sending their women [patients; note by the authors] to Brno, to Bratislava, wherever. Naturally I can continue to act in such a way in Austria and say: ‘No, everything is fine with us in Austria because I do have my institutes across the border’ ‘(Interview 6: 368–377).

The long blockade: ‘because it is such a hot potato we’d rather not touch it’

Moral politics are political areas in which values ‘play a central role in political debates and problem definition’ (Engeli and Varone, 2011, Knill et al., 2014). Assisted reproductive technology can be perceived as an example of moral politics. It is a particularly sensitive issue of politics in many societies because it combines a number of highly delicate controversies about fundamental societal values. These are attitudes towards family, sexuality, lesbian, gay, bisexual and transgender (LGBT) issues as well as the status of the embryo and disability. In Austria, moral politics are also sensitive because of distinct historical experiences. The lessons drawn from these experiences became part of Austrian political culture (Gerlich and Pfefferle, 2006, Griessler, 2010, Griessler, 2012a, Griessler, 2012b, Pelinka, 2006). The following section describes some important elements of this political culture.

Catholicism

First, Austria is a country in which Catholic traditions used to be very strong (Prainsack, 2006, p. 541). The Catholic Church rejects abortion, assisted reproductive technology, PGD and same-sex unions/marriages, and is deeply involved in respective public debates. Despite diminishing influence in recent years, the Catholic Church is still a relatively strong political actor, that participates in many political advisory boards (Potz, 2005) and has well-established connections, particularly to the conservative People’s Party (ÖVP) (Knill et al., 2014).

One lesson from the past: avoidance of political conflict

Second, assisted reproductive technology as a sensitive issue of moral politics is connected to another deeply rooted aspect of Austrian political culture, the avoidance of conflict and the high esteem for consensus. In order to understand the political system’s inclination towards consensus one has to look into Austria’s history. After World War II, Austria was characterized by the apparent paradox of a divided and yet consensus-oriented society for decades. Following World War I, Austria as a society came through a series of traumatic and dividing experiences: the end of the multi-ethnic Habsburg empire, the civil war of 1934, the authoritarian regime from 1933 to 1938, Austria’s integration into Nazi-Germany in 1938 which was welcomed by the greater part of the population, and the subsequent crimes against humanity committed in the Third Reich. The political elites coped with these collective traumas after World War II by a succession of grand coalitions and the emphasis of compromise between the two dominating yet antagonistic parties – the conservative ÖVP and the Social Democratic Party of Austria (SPÖ) (e.g. Gerlich/Pfefferle 2006, p. 506). Kurt Steiner characterized Austria as an example of a ‘consociational democracy’ and stated that ‘in Austria, the basic consensus is directed at the avoidance of conflicts. […] The social partners, who perform a major peacemaking function, also have a vested interest in the duopolistic status quo and become its guarantors’ (Steiner, 1972, p. 424; as cited in Pelinka, 2006, p. 231). As concerns the moral politics of assisted reproductive technology, this consensus orientation was severely challenged in the 1970s by the discussion of the abortion law (see above), which caused fierce ideological fights between women’s organisations and the SPÖ on the one side, and the Catholic Church and parts of the ÖVP on the other side (Prainsack, 2006, pp. 542ff.). As a consequence of this deep conflict, the SPÖ in particular tends to shy away from any similar conflicts in the area of assisted reproductive technology that might revive previous hostilities and which could threaten the delicate equilibrium achieved in the regulation of abortion (Griessler, 2010). But conservative politicians are also cautious not to enter into conflicts of moral politics of assisted reproductive technology and genetic testing which are hard to control (Griessler, 2010, p. 171). As a result of consensus orientation, the dominant political actors have little inclination to touch ‘the hot potato’ of assisted reproductive technology regulation (ibid.).

Neo-corporatist system and rationale

Third, after World War II the Austrian political system was strongly – and still is to a considerable extent – neo-corporatist (Pelinka, 2008, Tálos and Kittel, 2001), that means that established interest groups dominate policy-making, most importantly the ‘social partners’, a closed circle of organised interests privileged by law that are representing employers and employees. Policy-makers in Austria belong to an ‘exclusive club’, that ‘is small, the barriers to entry are high and the turnover of leading policy-makers low’ (Glynn et al., 2003, p. 28). Austrian neo-corporatism has its roots in a paternalistic relationship between the state and the public that reaches back at least to the eighteenth century, a formative period of the Austrian state (Hanisch, 2005, p. 26). The concept of ‘enlightened absolutism’ operates – benevolently enlightened but basically autocratic. Politicians and civil servants consider themselves – partly until today – as knowing best what is of interest to the public, they take care of, and, at best, only inform citizens about decisions, but do not involve them in policy-making (Degelsegger and Torgersen, 2011, Gerlich and Pfefferle, 2006). They also try to achieve cultural hegemony and try to dominate the public discourse. Similarly, the politics of biomedicine also follows a neo-corporatist logic. It only involves a small number of politicians, civil servants, and representatives of interest groups and excludes the public and organised interest groups that are less well-organised or dominated by other interest groups (e.g. patients) (Gottweis, 1988). When in the 1980s and 1990s the FMedG was negotiated it almost always happened to be the very same dozen legal and medical experts who participated in conferences, meetings, working groups and publications. Other important experts were theologians, philosophers, and natural scientists (Hadolt, 2007, pp. 296ff.). The working group that negotiated the final draft bill in 1988/1989 consisted of parliamentarians and other politicians, senior civil servants from responsible ministries, and other public authorities as well as medical and legal experts as advisors. This draft bill was not substantially changed thereafter in the official evaluation phase or in the parliament (Hadolt, 2007, p. 295). The public had little involvement in any of these processes.

Stable political camps and loyal voters

Fourth, effective concordance of Austrian elites was based on citizens’ loyalty and their acceptance of elite decisions made for them (Gerlich and Pfefferle, 2006, pp. 502ff.). Loyalty to the conservative or social democratic political camp (the so-called ‘Lagerbindung’; Ulram, 2006, p. 512) was based on and expressed by extremely stable voting behaviour. For more than 40 years, elections were characterized by high participation and the dominance of SPÖ and ÖVP. Together, the two parties shared between 90% (1966) and 84% (1986) of the votes (Plasser and Ulram, 2006).

To summarize the argument, for a long time, Austrian policy-makers tended to avoid the conflict-laden topic of assisted reproductive technology because it threatened the consensus upon which concordance democracy is built. The FMedG 1992 was created by a small number of politicians, civil servants and experts, and constituted a restrictive elite consensus in which two different core values of the governing parties intersected. This compromise excluded several groups of citizens from assisted reproductive technology treatment.

After a long time of procrastination – a sudden and surprisingly permissive reform

The reasons why the FMedG was changed and the amending law FMedRÄG4 was passed (after a surprisingly short consultation phase) on 21 January 2015 can be explained by several factors.

Change of values

After more than 20 years the values and attitudes towards family, LGBT, and assisted reproductive technology underlying the FMedG underwent a radical change. Although discrimination still exists, lesbian and gay couples are much more accepted in Austria than was the case 20 years ago. In 1999, 43% of the Austrian population completely opposed homosexuality; in 2008 this share decreased to 35% (Knill et al., 2014). In 2013, Austrian voters were asked about their attitudes towards same-sex marriage and adoption by same-sex couples in a telephone survey.5 41% fully agreed to the statement ‘same-sex couples, which means two men or two women, should be allowed to marry’ and 20% rather agreed. 15% strongly disagreed with this statement and another 18% rather disagreed. In the same survey, respondents were asked for their opinion about the statement ‘same-sex couples, that is two men or two women, should be allowed to adopt children’. 35% fully agreed to this statement and 21% rather agreed, whereas 22% completely disagreed and 15% rather disagreed (Seidl, 2013). Despite the increase in acceptance of same-sex marriage, it is still not legalised in Austria. In 2010, however, civil unions of same-sex couples became legal (Knill et al., 2014).

Slow, but steady and fundamental change of political culture

Another important precondition for policy change was the dramatic change of the aforementioned elements of the post-war political culture that Austria experienced in recent years.

The dual polar political system is in a constant and dramatic process of erosion. The power of the once all-dominating parties SPÖ and ÖVP is declining and more and more parties are appearing on the political landscape. Particularly since 1986, with the rise of the populist Austrian Freedom Party (FPÖ), the voting behaviour changed dramatically. In the last three decades the Austrian electorate has become increasingly unpredictable and volatile (Plasser and Ulram, 2006). In the general election of 2013 ÖVP and SPÖ together gained only 51% of the votes and the parliament was composed of six parties in total (Bundesministerium für Inneres, 2013). Today’s political parties need to be much more aware of voters’ needs and preferences. This development was also an important factor for the liberalisation of assisted reproductive technology, as will be discussed below.

Consociational democracy is a way for fragmented societies to cope with latent conflict. As Pelinka (2006) for example describes, in the 20th century, Austrian politics used to have very strong tribal elements, which meant a fragmentation of society in which individuals’ loyalties belonged to their respective group, their respective political and ideological camp. For several decades Austria has seen a constant but very slow transformation of its political culture. Austria is leaving behind the old pattern of consociational democracy. The political ideological camps lost their ability to produce stabile loyalties by heredity, cultural imprint and control. Pelinka sums up: ‘There are many indications that this [process] weakened elements of tribalism and subservience in the political culture. On the other hand, participatory elements […] became stronger. This, however, does not eliminate but accentuate inequality’ (Pelinka, 2006, p. 231; translation by the authors). Pelinka (2006) perceives the loss of votes in general elections as being accompanied by an increasing emancipation of society away from the political system, which is also expressed by informal participation in social movements, citizen initiatives and NGOS. (Pelinka, 2006, p. 231). As he summarizes: ‘The culture of an elitist consensus, which was based on high loyalty of a society fragmented into camps that allowed the tight control of society by politics, is largely at its end: the elitists consensus became weaker and loyalty diminished’ (Pelinka, 2006, p. 231; translation by the authors).

Citizens’ appeals to the Austrian Supreme Court, the Constitutional Court of Austria and the European Court for Human Rights (ECHR) (Griessler, 2012b, p. 53) can be interpreted within the shift towards a new political culture in which self-confident and independent citizens are dissatisfied with the ability of Austrian political elites to provide acceptable solutions and therefore start to act outside the traditional political system. The pattern that discontented citizens take initiative to change a law by generating external pressure on a gridlocked political system via appealing to national and international courts can also be observed in other policy areas, such as the recognition of same-sex unions in Austria (Knill et al., 2014, pp. 285ff.) The first case concerned two infertile heterosexual couples who were excluded from assisted reproductive technology because the FMedG banned egg donation and heterologous sperm donation. As the Constitutional Court of Austria ruled that FMedG was constitutional in this respect, the two couples appealed to the ECHR. In April 2010, the ECHR’s Small Chamber ruled that the FMedG 1992 violated the European Charter of Human Rights. Whereas the Austrian Bioethics Commission and the Ministry of Health thereafter advocated a reform of the FMedG, the conservative Federal Minister of Justice responsible procrastinated the decision and appealed for revisions to the ECHR’s Grand Chamber. Although the Grand Chamber rejected the claim of the two couples in November 2011, it pressed the Austrian government to evaluate the FMedG (Bundeskanzleramt Österreich, 2012, p. 7). As a consequence, the social democratic Federal Chancellor instructed the Austrian Bioethics Commission to comprehensively discuss the ethical aspects of the FMedG, in particular egg and sperm donation, embryo donation, assisted reproductive technology outside of marriage, and cohabitation as well as PGD (Bundeskanzleramt Österreich, 2012, p. 6). The issue of a reform of the FMedG got even more pressing when a lesbian couple demanded access to egg donation and appealed to the Austrian Supreme Court and the Constitutional Court of Austria. Although their appeal was rejected by the Constitutional Court for procedural reasons (Verfassungsgerichtshof, 2013, G 16/2013–16, G 44/2013–14) at first, in February 2012, the Court turned to the Bioethics Commission for advice. The Bioethics Commission was split in its opinion again (as regularly is the case); however, in July 2012, a permissive majority recommended a fundamental reform of the FMedG in a number of aspects, especially with regarding permitting egg donation, sperm donation, PGD and widening access to assisted reproductive technology (Bundeskanzleramt Österreich, 2012). Finally, on 10 December 2013, the Constitutional Court of Austria repealed several clauses of the FMedG as unconstitutional and demanded rectification (Verfassungsgerichtshof, 2012, G 14/10‐8, G 47/11‐18).

Power shift within the conservative party

Another pivotal factor for the liberalisation of assisted reproductive technology was a power shift within the conservative ÖVP which brought a more liberal party wing to power (Neuwirth, 2015). The ÖVP gave up its restrictive position – even against the opposition of the Catholic Church – and recognized the abovementioned change of attitudes towards assisted reproductive technology and same-sex couples in a large part of Austrian society – probably because of the fear of losing more and more voters (Pink, 2015). The pattern of diminishing influence of the Church on the ÖVP can be observed in other cases of moral policy, such as the abortion regulation in the 1970s and the recognition of same-sex unions (Knill et al., 2014). The final position of the ÖVP concerning ART assisted reproductive technology was less permissive than that of the SPÖ, but still much more liberal than that of the Catholic Church.

From protection against exploitation to individual right to a child

Not only the ÖVP, but also the SPÖ has been changing its position towards assisted reproductive technology since the 1990s. Back then, the SPÖ found the main problem of assisted reproductive technology to be the exploitation of women and their reproductive potential, and considered it as further increasing the societal expectations and pressure on women to become mothers. Based on the right of self-determination and the demand to protect women against exploitation they required a restrictive regulation, particularly concerning surrogacy (Hadolt, 2007, Weikert, 2006). Today, however, parts of the SPÖ understand the right for self-determination as also including the right that women should be able to earn money by egg donation and surrogacy (Weikert, 2006, p. 239). Moreover, the right for self-determination is also interpreted as the right that ‘in principle everybody who wants to have children should have them. How this is regulated in detail, which conditions should be met, under what conditions this should be permissible or not, is the next question’ (Interview 2: 412–414).

In summary, the reform of the regulation of assisted reproductive technology followed a similar dynamic as other issues of moral politics in Austria. The Church ‘can slow down reforms as long as there is a societal and political consensus about the persistence of Christian norms. The weakening of the position of the Catholic Church and the general change of value promote the dissemination of liberal attitudes, which became increasingly better organised and got access to the political agenda’ (Knill et al., 2014; translation by the authors).

The FMedRÄG of 2015

The reform of the Reproductive Medicine Law in 2015 (Fortpflanzungsmedizinrechts-Änderungsgesetz 2015) (FMedRÄG) represents an obvious, and in many ways radical, policy change (see Table 1).

Table 1.

Comparison of FMedG 1992 and FMedRÄG 2015.

Feature	FMedG 1992	FMedRÄG 2015
Medical Ultimo Ratio	Yes	Yes (exception: lesbian couples)
Access for lesbian couples	No	Yes
Access for single women	No	No
Surrogacy	No	No
Egg donation	No	Yes (no commercialisation or advertisement)
Heterologous sperm donation	No (exception: insemination)	Yes
Embryo donation	No	No
PGD	No	Yes (in limited cases)

PGD = preimplantation genetic diagnosis.

The FMedRÄG permits assisted reproductive technology in some cases, which were previously prohibited (FMedG). First, the law expands the group of people having access to assisted reproductive technology. Now lesbian couples are also allowed to undergo treatment (§ 2 [1]). However, assisted reproductive technology is still not possible for everybody. Single women and gay couples are still excluded from assisted reproductive technology, and surrogacy and embryo donation are still prohibited.6 Second, the new regulation permits sperm donation for IVF and ICSI – previously it was allowed for insemination only (§ 3 [2]). Donors must be at least 18 years-of-age (§ 13 [1]). Sperm must be tested for fertility and for being free of any medical threats to the woman and the child (§ 12). To prevent commercialisation, donors are entitled to receive limited compensation (in the form of allowances) (§ 16 [1]). A maximum of three donations is permitted per donor (§ 14 [2]). Hospital records must be kept about the donor and the use of the donation (§ 15) to safeguard the fundamental right of children to find out the identity of their biological father at the age of 14 (§ 20 [2]). Third, the FMedRÄG allows egg donation, but imposes age limits for donors (18 to 30 years-of-age; § 2b [2]), and for recipients (maximum age, 45 years; § 3 [3]). Commercialisation and advertisement of egg and sperm donations are prohibited (§ 16). To avoid commercialisation, donors receive only limited compensation (e.g. in the form of allowances or reimbursement of travel and hotel expense; the law does not define an exact amount) (§ 16 [1]). The child is entitled to learn the name of the egg donor at the age of 14 (§ 20 [2]). Finally, the reform permits PGD in specific cases (§2a [1]), i.e. after three or more unsuccessful IVF cycles, after three miscarriages, or when there is an increased risk of a miscarriage or genetic disease due to the genetic predisposition of a parent. PGD for genetic screening remains prohibited.

The debate about FMedRÄG 2015

On 5 February 2015 the draft law for FMedRÄG 2015 was passed in Parliament and entered into force on 24 February 2015 (Parlament, 2015a). During the official consultation process, more than 100 organisations and individuals sent statements to the responsible ministry (Parlament, 2015b). These respondents included disability organisations, women’s and men’s organisations, pregnant women, prenatal and infant clinics, representatives of the Catholic Church, LGBT associations, psychotherapeutic and psychological organisations, family counselling centres, health centres and health professionals, consumers representatives, lawyers, scientists and private individuals.

Several organisations gave positive feedback. For example, LGBT associations considered it as great social progress that sperm donation and IVF would be allowed for lesbian couples. The Austrian General Medical Council assessed the law as positive because it allows adaptation to new medical developments and to the changing needs of the population. Consumer representatives welcomed the legalisation of egg donation and PGD, as well as access to sperm donation and IVF for same-sex couples. The prohibition of commercialisation and advertisements is considered as generally important.

But there were also voices which considered the law as too restrictive. Women’s associations, LGBT associations and political initiatives criticised the fact that single women were still excluded from assisted reproductive technology and PGD. This would undermine women’s self-determination and because of high divorce rates in Austria this restriction would no longer correspond with the social reality that children often grow up without their father or their mother. Many single parents testify that they are able to raise happy children. In Austria, 12% of children under 15 years-of-age (149,000) live in single-parent-families, most of them (93%) with their mothers (Statistik Austria, 2015). Women’s associations and physicians criticised the restrictions on PGD, according to which women can have these tests only after three miscarriages or stillbirths. This was considered as a heavy burden for the women concerned and should be adjusted in favour of more liberal rules.

Others criticised the draft bill for being too liberal. Child and youth health centres called for mandatory and comprehensive checks and counselling of patients prior to assisted reproductive technology treatment (Parlament, 2015b; see comments of the Austrian League for Child and Adolescent Health [96]). They also demanded more documentation about donors and improved information for children. Men’s organisations maintained that children have the right to a mother and a father, and that the bill would give rise to unnatural and undesirable family structures (Parlament, 2015b; see comments of the association ‘Fathers without rights’ [83]). They claimed that donor sperm or eggs undermine the right to have a mother and a father. They also complained about the financial interests of the reproductive industry and what they considered as the selfish, alleged legal rights of marginalised groups. Psychologists and psychotherapists felt there was insufficient psychosocial counselling and care for women (see Parlament, 2015b; comments of the Austrian Federal Association for Psychotherapy [90] and the Association of Austrian Psychologists [68]). Assisted reproductive technology treatments should be accompanied by mandatory psychological counselling. But they also welcomed that PGD and egg donation are now also possible in Austria, and women no longer have to travel abroad. Family counselling centres criticised that the children’s best interests would not be adequately taken into account and that the egg donor’s significant risks were not sufficiently addressed (Parlament, 2015b; see comments of Family Alliance [64] and Nanaya [121]).

Disability organisations and representatives of the Church criticised PGD because it would discriminate against people with disabilities. They claimed that PGD would pave the way for a new kind of eugenics. Furthermore, the Church claimed insufficient consideration of child welfare (a child is seen as a commodity in the context of assisted reproductive technology), and criticised the exploitation of egg donors, the destruction of embryos in the context of IVF and providing access to assisted reproductive technology for lesbian women, because this would confuse the identity of the child and encourage an unnatural development of the family (Parlament, 2015b; see comments of a nun [15], the Catholic Bishops’ Conference [85] and the Catholic Family Federation [104]).

Psychological and psychotherapeutic representatives criticised that the psychological effects of assisted reproductive technology and PGD were not sufficiently known and that the position of psychologists and psychotherapists was not considered when the new law was created.

In the debate, new topics were raised as well, such as medical, psychological, and legal information for couples undergoing assisted reproductive technology and persons donating an egg or sperm (§ 7 FMedG). Moreover, providing a child with the information about its biological parents is considered as increasingly important (§ 20 [2]). In this context, the Austrian law on adoption could provide an example. After the age of 14 years, an adopted child is entitled to see information about his/her origin at the court or at the child and youth welfare centre.

Summary and outlook

This paper argues that the restrictive Austrian Reproductive Medicine Act of 1992 (FMedG) marked a compromise between the two governing parties, the SPÖ and the conservative ÖVP (Hadolt, 2007). This compromise was possible because the restrictive position intersected with two core values of these parties: the conservative defence of the traditional family model (ÖVP) and the protection of women against the exploitation and commercialisation of their bodies (SPÖ). The restrictive compromise, however, neglected the needs of many couples and individuals, and denied these groups access to assisted reproductive technology. They had to find various ways to cope with the restrictive legal situation. The decision-making process on the FMedG was based on characteristics of the then dominant Austrian political culture, i.e. consociational democracy and neo-corporatism. This political culture was based on several elements: (i) a number of severe cleavages within society (e.g., capital versus labour, Catholicism versus laicism, urban versus rural); (ii) paternalistic elite decision-making; (iii) consensus orientation and avoidance of conflict by political elites; (iv) integration of individual citizens in society by semi-political organisations with close relationships to political parties; and (v) life-long and even trans-generational loyalty of citizens to political camps. Despite the fact that different stakeholders repeatedly called for a change to the law, ÖVP and SPÖ were caught in a political gridlock for years caused by the aforementioned characteristics of political culture and procrastinated several times to find a solution to this seemingly irresolvable problem. In the end, reform became possible due to several factors: a gradual change in societal values (e.g. towards LGTB rights) and political culture as well as the political initiative of couples that had so far been excluded from assisted reproductive technology. They put the blocked political system under pressure by appealing to the Constitutional Court of Austria and the European Court of Human Rights. These developments together with the Catholic Church’s diminishing influence on the conservative ÖVP weakened the position of those who blocked a liberalisation of the FMedG. The case of the reform of the Austrian Reproductive Medicine Law shows that single cause explanations are insufficient to properly understand policy change in moral politics (Engeli and Varone, 2011, Knill et al., 2014). On the contrary, a long-term, historical, contextual and systemic perspective is needed to explain variation in moral politics that takes into account the details of a countrys’ political cultures and the particularities of specific historical experiences.

It is still too early to assess the full impact of the FMedRÄG as the law only entered into force in February 2015. There are a number of possible consequences. First, the number of lesbian and heterosexual couples who have a child because of sperm and/or egg donation might increase. Second, travel abroad for assisted reproductive technology treatment might decrease because many restrictions of the former law have been abolished. However, certain groups of patients might still travel abroad for assisted reproductive technology treatments which remained illegal or are not financed by the IVF Fund. Third, there are early indications that incoming medical tourism has increased. According to media reports, German couples increasingly seek assisted reproductive technology treatment in Austrian clinics because egg donation is prohibited in their country (Der Standard, 2015). The numbers of PGD, genetic testing during pregnancy and late abortions might also decrease as PGD finds its way into clinical practice. Another consequence might be a shortage of donated egg and sperm. It might turn out that suitable donors are hard to find in Austria and abroad; a grey market might develop. According to physicians there is already a shortage of donors since the law prohibits donor marketing and financial compensation. A physician criticised this situation and mentioned that ‘almost nothing remained of the previously progressive draft’. Couples could ask family and friends for donation; however, unrelated donors are generally preferred to avoid the possibility of related donors trying to interfere with the child’s upbringing (Der Standard, 2015, Mauritz, 2015). Already actors of the permissive advocacy coalition (e.g. the Chairwomen of the Austrian Bioethics Committee) have called for a more permissive law that also permits compensation for donation (Druml, 2016).

The social and psychological effects of sperm and egg donation on donors, recipients, partners, families and children are assessed differently by different actors (Griessler and Hager, 2012, pp. 22, 33ff., 43ff.); they are often disputed but hardly researched in Austria.7 The legal regulation and practice of assisted reproductive technology as issues of moral politics are socially highly controversial in international comparison. The discussion is about value conflicts, new and traditional family forms, forms of sexuality, the status of the embryo, the attitude towards disability, negative and positive eugenics, new forms of exploitation of females and growing global inequality because of assisted reproductive technology. The restrictive Austrian law prohibited for more than 20 years many possible assisted reproductive technology treatments. The new and more liberal law will lead to new developments and practices of assisted reproductive technology in this country. Research is needed to study these new developments.

Biography

Erich Griessler studied sociology and history in Vienna and Maastricht. From 1999 he has worked as a researcher at the Institute for Advanced Studies, and since 2016 has been head of the ‘Techno-science and Societal Transformation’ research group. He teaches at the University of Vienna and Vienna University of Economics and Business. His research interests include participatory technology assessment, ethical legal and social aspects of life sciences, interdisciplinary research, science and technology studies, political sociology and responsible research and innovation. He does research on research and innovation in biomedicine (e.g. assisted reproductive technologies, genetic testing, transplantation, xenotransplantation) and autonomous mobility.

Declaration: The authors report no financial or commercial conflicts of interest.