THE EMBRYO AS A LEGAL ENTITY-WOMAN AS A FETAL ENVIRONMENT THE NEW by lindahy

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THE EMBRYO AS A LEGAL ENTITY-WOMAN AS A FETAL ENVIRONMENT THE NEW

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									         THE EMBRYO AS A LEGAL ENTITY-WOMAN AS A FETAL
       ENVIRONMENT. THE NEW GERMAN LAWS ON REPRODUCTIVE
               ENGINEERING AND EMBRYO RESEARCH

                                        ANNE WALDSCHMIDT
                          Elsa Brandströmstr. 33a, D – 5300 Bonn 3, Germany


Synopsis—At the beginning of 1991 a new law on the protection of embryos came into force in
Germany. Although this Embryo Protection Law claims to prevent the abuse of reproductive
engineering, it allows medical practitioners and researchers ample scope to continue their work
unhindered. The refusal to set up statutory control and supervisory bodies means there are no
effective restrictions on activities of this kind. The law relates exclusively to the Criminal Code and
applies predominantly to doctors and scientists. It is based on an all-embracing concept of the
embryo that implicitly devalues the concept of woman, on an uncritical understanding of the role
and function of the doctor, and on the articles of the Constitution regarding the preservation of
human dignity, the right to life, and physical inviolability. It focuses exclusively on the protection
of the embryo and the well-being of the child. As far as women are concerned, the new law is
nothing but bad news. It disregards women’s basic rights and human dignity and degrades women
to the status of a fetal environment. There was no effective opposition to the bill in parliament. Die
Grünen/Bündnis 90 (the Greens/Alliance 90) rejected the bill outright and were the only
parliamentary group to put forward feminist arguments, but they hardly gained a hearing. The social
democratic opposition took an opportunistic stand by affirming reproductive engineering in
principle, agreeing with the ruling conservative and liberal parties on central issues and merely
demanding a few additional regulations in a bill of their own. At almost the same time as the
Embryo Protection Law, another law passed through parliament guaranteeing that the costs of
artificial fertilization would be borne by the public health scheme. Thus, decisive steps have been
taken to ensure the widespread application and acceptance of reproductive engineering in Germany.

Synopsis—Anfang 1991 ist in Deutschland ein neues Gesetz zum Schutze von Embryonen in Kraft
getreten. Dieses Embryonenschutzgesetz gibt zwar vor, die mi bräuchliche Anwendung der
Fortpflanzungstechniken zu verhindern, doch der Medizin und Forschung bleiben für die ungehin-
derte Fortsetzung ihrer Praxis gro e Freiräume. Durch den Verzicht auf gesetzliche Kontroll- und
Uberwachungsinstanzen sind ihnen keine wirksamen Grenzen gesetzt worden. Das Gesetz bedient
sich auch ausschlie 1ich des Strafrechtes und hat als Normadressaten überwiegend ÄrztInnen und
NaturwissenschaftlerInnen im Blickfeld. Ausgehend von einem umfassenden Begriff vom Embryo,
der ein abwertendes Frauenbild impliziert, einem unkritischen Verständnis der ärztlichen Rolle und
Funktion sowie den verfassungsrechtlichen Bestimmungen der Wahrung der Menschenwürde und
des Rechtes auf Leben und körperliche Unversehrtheit hebt das Gesetz ausschlie 1ich auf den
Schutz des Embryos und des Kindeswohls ab. Den Frauen allerdings bringt das neue Gesetz nichts
Gutes. Sie werden zum fötalen Umfeld degradiert, unter Mi achtung ihrer Grundrechte und Mens-
chenwürde. Im Parlament erfuhr das Gesetzesvorhaben keinen wirksamen Widerstand. Zwar lehnte
die Fraktion Die Grünen/Bündnis 90, die als einzige Fraktion feministische Argumente vertrat, das
Gesetz eindeutig ab, konnte sich aber kaum Gehör verschaffen. Die sozialdemokratische Opposi-
tionsfraktion nahm eine opportunistische Haltung ein, indem sie die Reproduktionstechniken
grundsätzlich bejahte, in zentralen Punkten mit den konservativen und liberalen
Regierungsfraktionen konform ging und nur in einem eigenen Gesetzentwurf einige umfassendere
Regelungen forderte. Fast zeitgleich mit dem Embryonenschutzgesetz passierte 1990 ein Gesetz,
das die Finanzierung der künstlichen Befruchtung über das öffentliche Gesundheitswesen
garantiert, die parlamentarischen Gremien. Mit den neuen gesetzlichen Regelungen sind
entscheidende Schritte vollzogen worden, um Ausbreitung und Akzeptanz der
Fortpflanzungstechniken und Embryo-nenforschung in Deutschland zu sichern.

Translated by Helen Petzold.
210                                    ANNE WALDSCHMIDT


    It came into force on January 1, 1991:       words of the Federal Minister for Justice
the new German law to protect embryos,           who formulated the law, designed to
the Embryo Protection Law. In the public         “effectively         (counter)      wrongful
debate since 1986, brought before                manipulation of nascent life and the
parliament by the Federal Government in          nightmare prospect of selective human
October 1989, and, following a fairly            breeding” (Report, 1989, p. 1). However,
lengthy committee stage, finally passed in       because the Federal Government and the
Autumn 1990 (just before the last General        ruling parties accept reproductive
Election), it has now become legal reality       engineering in principle, this noble claim
at last. The Pro-Lifers can cheer and jump       is not worth the paper it is written on. In
for joy; the medical and research lobbies        view of the enormous risks of this
will have to twist the statutes to their taste   technology, particularly to women and
and push for amendments to be made as            children, and in view of the many still-
soon as possible. And we women? The              unsolved legal problems it has raised, the
new law brings nothing but bad news as           law that has now been enacted cannot be
far as women are concerned. From now on          described as anything other than totally
women are confronted with an extremely           inadequate and full of loopholes.
extensive definition of the embryo; they              True to the lawcourt maxim, “If it’s not
themselves remain the objects of medical         prohibited (by law), it’s allowed,” the
practices that blatantly disregard their         current version of the Embryo Protection
rights to physical inviolability and human       Law1 continues to condone the following
dignity.                                         activities:         heterologous,       quasi-
    The aim of this article is to explain and    homologous and homologous fertilization,
critically examine the main provisions of        that is, artificial insemination by husband,
the new law from a feminist point of view.       by partner, or by donor; artificial
A summary of the positions and                   insemination for single women and
arguments put forward by the two                 lesbian partnerships;2 eugenic selection of
opposition parties represented in the            sperm donors; sperm quality tests as well
Federal German Parliament at the time            as the setting up of sperm banks; the
(the Social Democratic Party [SPD] and           application of artificial insemination and
The Greens/Alliance [Grünen/Bündnis]             embryo transfer without medical grounds;
90) serves to illustrate the range of            research on gametes, gamete cell lines,
opinion       expressed       within       the   and nonviable and dead embryos; and,
parliamentary debate. Reference is also          finally, the freezing of gametes, pronuclei,
made to another law that was passed in           and embryos.
1990 and largely escaped public notice. In            Moreover, the law still remains
providing for the costs of in vitro              obscure with regard to a number of other
fertilization (IVF) to be borne by the           areas closely linked to reproductive
statutory health insurance scheme it will        medicine, such as the analysis of genetic
play a decisive role in establishing and         material and its many different
promoting reproductive engineering in            applications,3 socalled somatic genetic
Germany. The article concludes with an           therapy, that is, genetic surgery on
assessment of the current controls on            humans, and germ line therapy. 4 What
reproductive engineering in Germany as           then is the true essence of this new
formulated in the above-mentioned laws.          law that has been described as the
                                                 “most restrictive bundle of regulations
THE EMBRYO PROTECTION LAW:                       on embryo research in the world” (die
 FULL OF LOOPHOLES, FULL OF                      tageszeitung, 1990)?
          IDEOLOGY                                    The new law evidently espouses the
                                                 logic of minimal surgery, for it merely
The new Embryo Protection Law is based           bans ion of pronuclei and embryos for
purely on the Criminal Code and, in the          r e s e a r c h purposes; experimentation on
                           New German Laws on Reproductive Engineering                   211


“surplus” and “developable” embryos; the         only necessary to calm the public. And it
utilization of embryos for third-party           is totally in keeping with this line of
interests (such as commercial trading,           reasoning that the law introduces a saving
industrial uses, and research); pre-             clause for medical practitioners. Artificial
implantation diagnosis; cloning; chimera         insemination may only be carried out by
and hybrid production; and, finally –            doctors (§ 9 Embryo Protection Law). In
albeit with gaping loopholes – surrogate         other words, the very people who are
mother-hood and sperm sex preselection.          supposed to be restricted by law are
The law says nothing at all about how            simultaneously granted a monopoly on
observance of these regulations is to be         performing the practices under restriction.
monitored, controlled, or enforced. The          This really is setting a thief to catch a
sole aim is to prevent acts of abuse on the      thief! The justification for this clause is
part of doctors and scientists. All others       proof of an (intentionally?) naive
involved (such as surrogate mothers,             assessment of the role of the doctor.
donors,     contractors,    patients,     and    Reference is made to “scientifically
intermediate agents) are not liable to           founded medical knowledge,” to a “full
punishment. Penalties range from prison          diagnosis of the cause of sterility,” to
sentences of 1 to 5 years or, alternatively,     doctors conducting “a very thorough
fines. Medical practitioners can thus count      interview with the couple informing them
on getting off lightly, especially for a first   of possible alternatives as well as of all
offence. The imposition of prison                the consequences and risks” (Bundestags-
sentences without probation would only           Drucksache 11/8057, p. 17). The
ever come into question for persistent           implication underlying these formulations
repeat offenders in particularly severe          is that doctors actually work this way in
cases.                                           practice. If only that were the case! The
    However, it is extremely unlikely that       experiences of women who have
anyone will in fact ever be convicted for a      participated in IVF programmes prove the
criminal offence under the Embryo                contrary. In addition to this, the vital
Protection Law. Criminal practices can be        public debate is “elegantly” side-stepped
detected and exposed by those inside the         by including a “voluntary clause”,5 that is,
profession, which means that the scientists      no doctor can be compelled to give these
and research staff employed in medical           treatments. Reproductive technologies are
research and hospitals would have to             thus first and foremost declared a doctor’s
supervise each other. But who’s going to         problem and then reduced even further to
risk his or her career by reporting              become an ethical dilemma confronting
violations of the Embryo Protection Law?         some of them.
Even if charges are brought, in most cases           The overriding theme of the Embryo
prosecution will have no chance of               Protection Law is the protection of human
success for it would prove extremely             dignity constitutionally guaranteed in the
difficult, if not impossible, to provide         German Basic Law. Yet the only entity
evidence in the laboratories.                    that is mentioned in the Embryo
    According to the writers of the new          Protection Law as deserving protection is
law, it is by no means “an expression of         the embryo. The fact that women’s basic
distrust in any particular professional          rights may be violated is given no
group,” it has been introduced on the            consideration whatsoever. In this, the new
understanding “that, in general, scientists      law is in complete harmony with the
as well as medical practitioners (are)           current legal debate on reproductive
aware of the responsibility they bear            engineering and abortion, in which
towards human life” (Report, 1989, p. 3).        women and their human dignity simply do
They obviously have complete faith in            not exist. The discussion on the
doctors’ and researchers’ sense of               beginning of embryonic life and the
responsibility. Apparently, legislation is       human dignity of embryos and fetuses fill
212                                  ANNE WALDSCHMIDT


the pages of countless legal reports.6 What    constitutional values (must be) weighed up
was once the fruit of conception that was      against each other” making particular
borne to term by the prospective mother        “allowance for the Basic Law’s ruling in
before becoming a child has long since         favour of human dignity and life.” The
been redefined and declared a legal entity     basic right to freedom of research has to
in its own right. Pregnant women are no        be taken “particularly seriously” but even
longer regarded as whole individuals who       this right is “subject to the immanent
bring forth life but as fetal environments     limitations . . . that ensue from the constitution
that represent a potential danger to the       itself (Federal Minister of Justice, 1989, p. 10).
embryo from which it has to be protected.      However, the numerous exceptions foreseen
    The new Embryo Protection Law goes         by the new law provide embryo researchers
even further, to extend the duration of        with enough loopholes – there will be no need
embryo protection. According to § 218 of       for them to remain idle any more than in the
the German Criminal Code on abortion,          past. Any claim to limit the freedom of
the embryo is placed under state               research must thus be classed as lip-service.
protection after implantation in the               If it is to be taken seriously, embryo
mother’s womb. But now, according to §         protection can only be effective if it goes
8, Clause 1, of the Embryo Protection          hand in hand with protection of the
Law, the fertilized egg is considered an       pregnant woman and is not carried out
embryo from the moment cell fusion             against her will. In this context the
occurs. This definition marks the dividing     provisions           concerning         surrogate
line between legal and illegal embryo          motherhood are the yardstick against
research. However, as it is more than          which to measure the objectives and legal
doubtful that the Embryo Protection Law        remedies put forward by the lawmakers.
will have any practical repercussions on       To be sure, the legislation claims to have
science and research, the symbolic nature      banned surrogate motherhood, that is, for
of this definition of the embryo becomes       a child to be borne by anyone other than
all the more significant, in particular with   the genetic mother, yet at the same time it
regard to women. The new legal formula,        refrains from expressly banning embryo
defining the beginning of life severs the      donation. According to § 1, Clause 2, of
embryo from the pregnant woman who             the Embryo Protection Law, anyone
can now be held responsible for the            who        “undertakes         to    artificially
absolute protection of the legal entity        inseminate an ovum for any other
within her. Political experience shows that    purpose than to bring about a pregnancy
inasmuch as the embryo is held to be a         of the woman from whom that ovum is
legal entity in its own right, women’s         taken” will be liable to punishment.
rights are curtailed. Indeed she, the          However, this formulation refers solely
woman, no longer exists as an entity           to the purpose of artificial insemination
herself. Thus, as far as women are             and does not really exclude actual
concerned, there is more to this law than      embryo          donation        or     surrogate
meets the eye and it is as yet impossible to   motherhood. The reasoning behind this
foresee how far reaching its consequences      is that “Objections could justifiably be
will be.7 It is more than likely, for          raised against a criminal ban of this
instance, that the Abortion Law will be        kind at least in those cases in which
tightened up so as to guarantee state          embryo donation offers the only
protection not only for test-tube embryos      possibility of saving the embryo from
but also for naturally conceived embryos       death” (Bundestags-Drucksache 11/5460,
from the moment of conception.                 p. 8). So we see that this exception is
    Moreover, the Embryo Protection Law        geared toward a case in which a fertilized
has adopted the ruling opinion with regard     embryo cannot be implanted in the woman
to freedom of research. In the case of         from whom the egg originated and is thus
reproductive technology “conflicting           transferred to a”surrogate mother.”
                          New German Laws on Reproductive Engineering                     213


    According to the reasoning of the          problem. This controversial and ethically
Embryo Protection Law surrogate                reprehensible practice is condoned by the
motherhood cannot reasonably be                Embryo Protection Law. § 1, clause 2,
imposed on a child as having three parents     only forbids microinjection if it is
would complicate the child’s identity          employed for other purposes than bringing
development         (Bundestags-Drucksache     about a pregnancy. Again the reasoning is
11/5460, 1989, p. 7). Divided motherhood       embryo centered: The clause is designed
is thus only forbidden because of the          to prevent the production of pronuclei and
prenatal emotional relationship of the         thus the possibility of producing embryos
woman to the fetus and future child. The       for research purposes (Bundestags-
structure of postnatal social relationships    Drucksache 11/5460, p. 9). The
and the role of the father, which are          lawmakers give no consideration at all to
crucial to the development of an               the fact that women also need to be
individual’s identity, are ignored. The fact   protected from unnecessary, painful, and
that this legislation forbids divided          extremely dangerous medical invasions.
motherhood but not sperm donation,             Indeed, in this respect they even surpass
which after all implies divided fatherhood,    the German Federal Chamber of
clearly illustrates just how narrow the        Physicians,8 whose Central Ethics
lawmakers’ concept of the parent-child         Commission was not (yet ?) prepared to
relationship is. Besides which it fails to     permit this method in 1989. The argument
formulate a detailed procedure for embryo      here however was purely pragmatic: “The
donation and thus opens the door to            commission        is      convinced        that
surrogate motherhood, whether on a             microinjection has a great future potential in
commercial or on an altruistic basis. For      treating male infertility but that it is as yet
how is it intended to effectively prevent      too early for it to be applied to humans”
interested parties reaching amicable           (Central Commission, 1989, p. 24).
agreements (even without the knowledge             The Embryo Protection Law makes a
of the doctors)? So far the lawmakers have     rather helpless attempt to prohibit another
not addressed this question. That surrogate    scandalous practice associated with
motherhood should be rejected on               reproductive technology, the killing off of
principle because it means using another       multiple fetuses in the womb (fetocide).
woman’s body to fulfill one’s wish for a       Multiple pregnancies often result from the
child, because it is bound up with the         high-dose hormone treatments that are
commercialization of reproductive organs       prescribed to ensure that doctors can point
and abilities as well as eugenic               to higher pregnancy rates while women’s
expectations on the part of the genetic        health is put at risk. Selective fetal
parents – not one of these aspects has been    reduction supposedly reduces the risk to
taken into account by the lawmakers.           the woman and the fetus after the event. In
    The biased view of the Federal             August 1989, the Federal Chamber of
Government and the parliament is also          Physicians issued a policy statement on
illustrated by the fact that the Embryo        fetocide that indirectly legitimized this
Protection Law allows IVF to be used on        practice as far as the medical profession
fertile women. So-called microinjection,       was concerned (Central Commission,
artificial penetration of the zona pellucida   1989, Item 4.3). It was followed by
of the egg, designed to open the way for       vehement public protest and the ruling
sperm that are not capable of penetration      parties had no alternative but to introduce
is finding increasing use as a therapy for     the relevant modifications to the Embryo
male infertility. Bluntly this procedure       Protection Bill during the committee stage.
means that a fertile woman has to submit       The original version made no specification
to IVF treatment – with all the potential      as to the precise number of embryos to be
risks to her health it involves – although     transferred to the prospective mother,
not she but her partner has a fertility        whereas now the number has been limited
214                                     ANNE WALDSCHMIDT


to a maximum of three embryos that may            built on shaky foundations. The latest
be retransferred to the woman (§ 1, clause        research findings, to which the lawmakers
1, No. 3, 4, and 5 – Embryo Protection            constantly refer, no longer support the
Law). And what, may we ask, is the                assumption that human life begins with
position with regard to the stimulation of        cell fusion. In 1987 and 1988 an English
egg production and the extraction of egg-         research team was able to establish that
cells? Again, there are no provisions to          embryonic genome activity begins at the
regulate procedures of this kind with the         four-to-eight-cell       stage       (Central
result that surplus embryos for future            Commission, 1989, p. 32). Today,
laboratory         experimentation          are   scientists argue that the embryo only
preprogrammed.                                    becomes an individual once the genes are
    In fact, the provisions of the Embryo         active, and not at the earlier stage of cell
Protection Law concerning embryo                  fusion. The embryonic cluster of cells can
research      are     altogether    extremely     therefore only be regarded as a human
questionable. According to the definition         being once its genetic programme is
of the new law an “embryo” is a                   actually fixed, that is, when it has reached
“fertilized, developable human egg-cell           the four-to-eight-cell stage. Thus it should
from the moment of cell fusion onwards”           be permissable to experiment on and,
(§ 8, Clause 1 – Embryo Protection Law).          under certain circumstances, to “use and
Totipotent cells that are capable of              destroy” embryos up to the first gene
division and development into an                  expression.9 This theory clearly illustrates
individual along with pronuclei, that is,         that all attempts to define the beginning of
cells in which sperm penetration of the           life by means of a static concept lead to
egg cell has occurred (whether by natural         absurdity, particularly if they are based on
or artificial means) but cell fusion has not      an approach that concentrates solely on
yet taken place, are also protected by the        the cell and leaves the woman as child-
new law.                                          bearer      and     birth-giver    out     of
    It     is     the      introduction      of   consideration.
“developability” as the major criterion in            Current     scientific     developments
deciding if an embryo should be protected         suggest that it will be impossible to
that is particularly problematic. This            uphold the extensive protection of the
criterion did not feature in the draft bill for   embryo intended by the law for very long.
an embryo protection law that was                 Over the last few decades, embryos have
discussed in 1986. According to the law           become a highly coveted object of
that has now been passed all embryos are          research and a raw material for medical
to be considered developable for the first        experimentation. Embryo research is
24 hours unless it is established that the        generally justified with the argument that
fertilized egg-cell does not develop              it serves “higher” aims, namely the
beyond the one-cell stage (§ 8, Clause 2 –        mitigation of human suffering and the
Embryo Protection Law). The new law               protection of life and health. Yet any
does not contain any definition of                research can be vindicated with
developability beyond this. Who is to             generalized justifications of this kind. The
judge, and on what criteria? This                 end, in this case “health,” is obviously
fundamental           question        remains     supposed to justify any means as far as the
unanswered. It is most probably correct to        scientists are concerned. But they are
assume that in practice it will be the            unable to say anything specific with
practitioners of reproductive medicine            regard to the tangible prospects of
who will make this decision – led by their        remedial success or therapies that embryo
subjective and professional interests.            research might bring. A statement made
    Cell fusion as a further major criterion      on the Embryo Protection Law before the
of embryonic life has been around for a           by the medical research lobby at the
long time. Yet even this pillar of the law is     hearing parliamentary law committee in
                            New German Laws on Reproductive Engineering                    215


March 1990 was very general and vague             interventions permitted by the new law
on this score: “The therapeutic objective         license the basic research required for germ
remains even if gains for clinical                line cell gene transfer in future. Germ line
application are only discernable on a very        therapy is already under discussion in the
distant horizon” (Akademie für Ethik in           United States and its application is no
der Medizin, 1989, p. 7).                         longer ruled out on principle. Apparently,
    Indeed, contrary to its stated aim, the       corresponding research is already under
Embryo Protection Law now brings                  way in Portugal.11
Germany into line with other countries                The lawmakers have also stood back
and opens the door to embryo research.            from making a clear stand against germ
The detailed provisions are so full of            line therapy. Consideration was given to
omissions as to provide enough                    the fact that the only way to develop the
opportunity for activities of this kind.10 It     technique of germ line therapy would be
already allows the deep-freezing of egg           by human experiment. Because the
cells and embryos. For example, § 1,              consequences of the inevitable setbacks
Clause 1, Item 5, implicitly sanctions            would be irreversible – “at least at the
conservation by failing to stipulate the          present state of the art” – this would be
maximum number of egg cells to be                 irreconcilable with the Basic Law. Under
fertilized. Surplus embryos are always            these circumstances the question of
produced in connection with IVF                   whether germ line therapy was justifiable
treatment. There is no way to prevent this        at all could remain unresolved. At all
because it is impossible to accurately            events it is impossible to overlook the
gauge the hormone dosages required to             danger that it could be misused for the
stimulate egg maturation and because the          purposes of selective human breeding
practitioners of reproductive medicine have       (Bundestags-Druck-sache 11/5460, p. 11).
started to introduce more and more egg cells      So despite the fact that those responsible
to the sperm in the test tube so as to increase   for the law are by all means fully aware of
the chances of fertilization and obtain a         the dangers, on this issue of all issues they
sufficient number of embryos to implant in        leave the way open to science and
the prospective mother. Otherwise their           research.
“success” rates would be far lower than they          There was only one question on which
already are. There is nothing in the Embryo       the Bundestag remained firm. Despite
Protection Law to prevent the preservation        vigorous protests from the Federal
of embryos provided that the storing of           Chamber of Physicians, the planned ban
surplus embryos can be justified on medical       on embryo diagnosis was included in the
grounds and is performed by a doctor              law that was finally passed. § 6 of the
(Bundestag-Drucksache 11/8057, p. 14; § 9,        Embryo Protection Law is designed to
No. 3 – Embryo Protection Law). What this         prevent the selective breeding of
actually means is that the Embryo Protection      genetically identical individuals (cloning)
Law allows embryo researchers to set up a         and the isolation of totipotent embryonic
bank of deep-frozen gametes for future use.       cells for research or diagnostic purposes.
    Gamete research may also be                   This indirect ban on pre-implantation
conducted with a clear conscience                 diagnosis was justified with the
according to the provisions of the Embryo         argument that it was impossible to
Protection Law. § 5 allows artificial             exclude the possibility of damage to the
manipulation of gametes and/or germ line          embryo during the separation process.
cells provided the possibility of                 However, no references was made to the
fertilization and implantation has been           eugenic aspects necessarily involved
excluded. It is at present a criminal offence     with diagnosis of this kind. The Federal
to perform germ line therapy but not to           Chamber of Physicians objected that
conduct the research necessary for the            there was basically no difference
development of the technique. The                 between prenatal diagnosis on embryos
216                                    ANNE WALDSCHMIDT


and chorionic villi sampling. Both                unashamedly provides a legal basis for the
procedures involved the extraction and            implementation of eugenics. It opens the
examination of active or embryonic cells.         door to the selection of sperm according to
Patients, geneticists, doctors, laymen, and       gender. Sex selection is now allowed “if . .
the discerning public were in widespread          . (it) serves to prevent a child suffering
agreement as to the ethical innocuity and         from Duchenne-type muscular dystrophy
medical benefits of prenatal diagnosis            or another similarly severe genetic
(Beier, 1989, p. 33). The interests of the        disease, providing that the disease the
research scientists are evident. Embryo           child is in danger of contracting is
diagnosis is a branch of basic research that is   recognized as being sufficiently severe by
vital to the development of genetic and germ      the competent authority instituted by the
line therapy and appears to hold out the          law of the Land” (This refers to the
promise of “victory” over cancer and severe       decentralized legal framework in the
genetic diseases. It also promises to bring       German Länder.)
scientific laurels and the prospect of winning        However, this provision clearly
the Nobel Prize, as well as commercial            contradicts the recommendations of a joint
success on an international scale.                Federation-Lander Working Party on
    The new law also contains a number of         reproductive medicine made in 1988 to the
other loopholes. There is no clear                effect that IVF should only be permitted to
definition covering the use of embryos for        treat a couple’s sterility. It was clearly
research purposes. “Use and destroy”              stated that “this does not include genetic
embryo research is prohibited but there is        grounds” for otherwise, it was argued, this
no ban on noninvasive diagnosis by                would promote “a mechanism by which
observation or the examination of embryos         damaged life would automatically be
in vitro before transfer to the woman for         destroyed once damage has been detected”
the purpose of bringing about a pregnancy.        (Bund-Lander       Working        Party     on
Equally, there are no obstacles to                Reproductive Medicine, 1988, p. 34).
experimentation on embryos that have                  It is unbelievable – the Embryo
been classified as dead or nondevelopable.        Protection Law declares a specific
The fact that the Embryo Protection Law           disability as the yardstick against which
also fails to prohibit or limit egg extraction    all other diseases and disabilities are to be
has a great bearing on research policy. The       measured. Disabled people living with
availability of women’s mature – or               muscular dystrophy are obviously
immature – eggs is the mainstay of                expected to live with the stigma of finding
reproductive medicine and embryo                  themselves stated by law to be objects of
research. Science needs a constant supply         legitimate negative selection, or, in other
of this essential raw material. Attempts are      words, meriting elimination. No doubt
also being made to utilize human ovarian          they will soon have to put up with remarks
tissue taken from dead female fetuses,            to the effect that their fathers must have
taken from corpses, or removed during             missed       their       sperm       selection
surgery as a source of material for medical       appointments.
and embryological research. The aim is to             On the basis of current prenatal
then mature these egg cells in the                diagnosis practices, Trisomie 21 (Down’s
laboratory so that they can subsequently          syndrome) is already counted as a form of
be artificially inseminated or used for           disability that needn’t really exist any
some other kind of research (Klein, 1989,         more at all. Now muscular dystrophy is
pp. 256 ff). These most recent                    declared the next so-called avoidable
developments are not covered by the new           disability on the list. So stealthily, step by
Embryo Protection Law.                            step, we see the introduction of a
    Above all, § 3 of the Embryo                  catalogue of genetic diseases that are to be
Protection Law has particularly far               eliminated. Problems are also raised by
reaching consequences for it plainly and          the fact that the Embryo protection Law
                            New German Laws on Reproductive Engineering                  217


provides for state recognition of “similarly      the Bundestag dealt with a bill put forward
severe diseases” for which sex selection is       by the oppositional SPD to solve “the
to be allowed by “legally competent               problems of artificial insemination for
authorities” that are not defined any more        humans and surgery on human gametes”
specifically. This gives state authorities a      (Bundestag-Drucksache 11/5710). The bill
monopoly over the definition of disease           contained provisions covering the
and disability that is bound to have              criminal, procedural, civil, and social
devastating       repercussions     on     the    insurance aspects of the problem and was
traditional concepts of health and                intended to provide rulings for the entire
sickness. It is also probable that it will        field of reproductive medicine. However,
soon become part of routine IVF                   this bill also condoned reproductive
procedure for each individual sperm to be         technology and embryo research in
examined and discarded if it carries a sex-       principle, it largely ignored women, and it
linked genetic disease. There will be             was argued solely on the basis of child
growing social pressure to prevent these          well-being and embryo protection. It was
diseases at the earliest possible stage –         obviously        written     without     any
that is, in the test-tube – as more and more      understanding of feminist politics. The
diseases are discovered on the sex                SPD even proceeded from the same
chromosomes. Couples who have a family            definition of the embryo that underlies the
history of diseases of this kind could find       Embryo Protection Law. Nor was their
themselves        compelled     to     restrict   line of argument on embryo research and
reproduction to IVF with “healthy” sperm.         surrogate motherhood any different from
Historical experience shows that there is a       that of the Federal Government.
tendency for measures that were initially             There were only a few minor
restricted to limited target groups and           differences in the positions advanced by
justified on the grounds of preventing            the Government and by the Parliamentary
disease to be subsequently extended to            Group of the SPD. For instance, the SPD
cover the entire population and more and          intended to make the production of
more so-called inferior characteristics.12        surplus egg cells a punishable offence and
   To my knowledge this is the first time         attempted to obstruct the development of
since the end of the National Socialist era       germ line therapy by calling for a ban on
that a law officially specifies a disease the     the manipulation of germ line cells. The
occurrence of which justifies selection. Up       SPD also intended to prohibit the freezing
to now only one law has contained a               of embryos and inseminated or immature
paragraph specifying diseases warranting          egg cells, but not the freezing of sperm.
compulsory sterilization and this was the         The argument in favour of banning cryo-
National Socialist Law For the Prevention         conservation rested solely on embryo
of Congenitally Diseased Offspring,               protection and the prevention of a
passed in 1933.13 Not enough that for             “generation         leap”       (Bundestags-
years now we have been confronted with            Drucksache 11/5710, 1989, p. 12) and not
legislation that is implicitly founded on a       on the fact that embryo research is
eugenic philosophy. The time has                  dependent on frozen embryos and
obviously come to formulate this                  gametes as a source material
philosophy openly (again ?).14                    (although this is the real issue at stake
                                                  with regard to cryo-conservation).
    THE POSITIONS OF THE                          The SPD also intended to restrict
 PARLIAMENTARY OPPOSITION                         artificial insemination to married
     PARTIES: BETWEEN                             couples       and     firmly     established
 OPPORTUNISM AND OUTRIGHT                         nonmarital relationships and to
         REJECTION                                exclude sperm donation (AID). IVF
                                                  treatment was to be restricted to
Along with the Embryo Protection Law,             “medically indicated infertility on the
218                                ANNE WALDSCHMIDT


part of the woman.” Doctors were to be      approach is no different from that of the
obliged to keep donor sperm records. It     ruling parties and it is with these ruling
was also proposed that a state              parties that they closed ranks in
documentation office be set up as a         parliament.
depository for data on genetic case             The only remaining opposition of
histories. These last two provisions        any significance was the Parliamentary
would have made it possible to gather       Group of Die Grünen/Bündnis 90,
an enormous amount of information on        which was unremitting and unequivocal
the reproductive behaviour of the           in its rejection of reproductive
nation.                                     engineering and the sole voice to
   The SPD proposal to submit couples       articulate the feminist point of view in
to compulsory counselling by a medical      the parliamentary debate.16 In a
practitioner    and    a    psychosocial    resolution put to the House, it exposed
advisory centre prior to IVF treatment      the inherently anti-woman and eugenic
must also be seen as extremely              nature of these technologies and
problematic. Counselling was to             described them as a mass human
concentrate on child well-being and         experiment       (Bundestag-Drucksache
not, by any stretch of the imagination,     11/8179). The detailed proposals
on the needs and well-being of the          demanded a broad public information
woman who is, after all, the person who     campaign to point out the risks and
will physically undergo IVF treatment.      failure rates of artificial insemination,
Genetic counselling was also to be a        rejected the financing of IVF through
component      of    this     compulsory    the public health insurance scheme, and
interview. Evidently, tribute was to be     called for a ban on all reproductive and
paid to eugenics in this way. It is         medical experimentation on women,
apparent here that the SPD has no           embryos, and gametes. The Federal
clear-cut position on eugenics. On the      Government was called on to provide a
one hand the SPD saw counselling on         wide-ranging and voluntary advisory
selective procedures as a compulsory        service for the involuntarily childless
component of IVF treatment, on the          and to provide funds for research on the
other hand it opposed the introduction      causes     of    infertility    and    the
of eugenic sperm sex selection and          development of noninjurious means of
unsuccessfully attempted to annul the       contraception. Science and research
relevant clause through the Bun-desrat      was to be made more transparent and
(the German Federal Upper House)            nongovernmental and public bodies
after the Embryo Protection Law had         were to be given more say in the
passed. However, all in all, the stance     distribution of research funds. Research
of the SPD can only be described as         policy would take ethical principles,
opportunistic. It came out in support of    social and ecological compatibility,
the crucial pillars of the government’s     safety regulations, and social benefits,
proposal even if it was not satisfied       as well as minority positions and
with a purely criminal law and pushed       hitherto neglected problem areas into
for more comprehensive statutory            account. In the parliamentary debate on
controls. Our aim is to prevent abuse       October 24, 1990, the other parties sat
and safeguard possibilities – this is the   through the speech held by the Greens’
credo of the SPD with regard to all new     spokeswoman outlining these detailed
technologies and so too with regard to      proposals, interrupting it frequently
reproductive engineering. The belief        with loud heckling and polemical
behind this credo is that technology is     remarks, and then proceeded to
in itself neutral and that ethical          continue with the business of the day –
problems only arise when it comes           the Embryo Protection Law was passed
down      to    the     application    of   with the votes of the Christian
technology.15 In this, their basic          Democrats and the Liberals.
                          New German Laws on Reproductive Engineering                    219


THE LAW ON THE FINANCING OF                     pregnancies following in vitro fertilization
 REPRODUCTIVE TECHNOLOGY                        is currently in the region of 20 to 25 per
THROUGH THE PUBLIC HEALTH                       cent at the most and of these roughly a
   SCHEME: MONEY IS THE                         third end with a miscarriage. The briefing
      DECISIVE FACTOR                           should also deal with the health risks
                                                connected with artificial insemination
Yet the ground had been prepared even be        (e.g., ovarian cysts, complications from
fore the Embryo Protection Law was              surgery, high-risk pregnancies including a
passed. In June 1989 the Cabinet had            higher than normal incidence of multiple
already decided to prepare an amendment         pregnancies)” (The Federal Minister for
to existing legislation reintroducing the       Labour and Social Management, 1990, p.
system by which the costs of IVF would          35). These statements amply illustrate the
be covered by the health insurance              boundless ignorance and irresponsibility
schemes.17 The demand for IVF to be             of the legislature – the regulations that
returned to the list of social insurance        have been introduced actually endorse and
benefits was justified with the argument        provide an institutional framework for
that all involuntarily childless women          IVF despite full knowledge of the dangers
should have access to this method of            involved with this technique.
treatment irrespective of their financial           Moreover, publicly financed treatment
circumstances. The new reproductive             of this kind may only be carried out in
technologies should not be the privilege of     institutions and by doctors licensed to do
the well-off, who are able to afford to go      so by the Länder authorities. They must be
to private hospitals in this country or         provided with the requisite diagnostic and
arrange to have the treatment abroad. This      therapeutic         equipment,        employ
amendment        was     rushed     through     scientifically proven methods, and be run
parliament, had already been passed by          on a rational, efficient, and economically
June 1990, and even came into force             sound basis. Treatment must have a
retrospectively from January 1, 1989.           reasonable chance of success and may be
With the public hardly having become            attempted no more than four times. The
aware of it, this created the conditions        criterion of success is pregnancy. What
necessary for reproductive engineering to       this actually means is that the legislature
go ahead with its plans even though its         has adopted the line of reasoning put
application in medical practice was             forward by the practitioners of
subject to a number of controls.                reproductive medicine: that pregnancy is
    This     law18     restricts   artificial   credited as a success to keep down the
insemination,      IVF,      and     gamete     official failure rate, thus already reckoning
intrafallopian transfer (GIFT) to married       with the high rates of unsuccessful
couples and does not allow sperm                embryo       transfer,    nonincidence     of
donation from a third party. These              pregnancy,       and     early    miscarriage
techniques may only be implemented on           following IVF treatment.
medical grounds and provided the married
couple has previously been counselled by            THE LAWS ON REPRODUCTIVE
a doctor who is not conducting the                     MEDICINE AND EMBRYO
treatment. The mandatory points to be                RESEARCH: THE GROUND IS
covered by the counsellor were outlined in           PREPARED FOR THE FUTURE
the ministerial draft as follows: “A
detailed description must be given of the       In the final analysis, public financing is
psychological      and    physical    stress    the breakthrough for reproductive
connected with this treatment. This             engineering. Past experience has shown
includes providing information on the           that doctors tend to make certain
generally low rates of success. In the case     diagnoses, prescribe certain courses of
of embryo transfer, the rate of successful      treatment, and apply certain techniques
220                                   ANNE WALDSCHMIDT


only when they can be sure that their bills     and research lobbies have been amply
will be paid and their profits assured. The     safeguarded by providing a legal
howl of protest with which the                  framework for current practices that have
practitioners of reproductive medicine          up to now only been sanctioned from
greeted the temporary removal of these          within the profession. Basically, the new
treatments from the list of health              law gives its blessing to what has long
insurance benefits demonstrated one thing       since become everyday practice – no more
quite clearly – their main interest is in the   and no less. Even so, it represents a
lucrative earnings associated with              decisive     strategic    step.    Statutory
reproductive engineering. Also, through         regulations provide the instruments
the social insurance schemes, they now          necessary for state intervention in both
gain access to a huge reservoir of clients      biomedical research and the reproductive
and patients on whom they can continue to       behaviour of society. The legislation
experiment.                                     introduces structures and categories that
    Essentially, the government is duty         will lend themselves to modification and
bound to guarantee scientifically proven        amendment in future. If fact, some of
standards of medical care and patient           these are already for seeable today. There
safety within public health service.19          are signs that the outright ban will be
These principles have been blatantly            lifted in the case of cancer research and
disregarded by the new health finance law       that consideration is being given to the
because artificial test-tube insemination is,   possibility of dropping state prosecution in
in effect, an unsuccessful treatment that is    cases in which medical practitioners are
being conducted as a mass human                 subject to a conflict of conscience (cf.
experiment on a worldwide scale.                Bülow, 1989, p. 139).
Evaluation and risk assessment have only            The penal clauses of the Embryo
just begun, and it is already apparent that     Protection Law only cover certain aspects
these technologies involve immense social       of the complex problem of reproductive
dangers both to individuals and to society      medicine, while condoning it in principle.
as a whole – the manipulation and               It is here that the whole dilemma of the
exploitation of women, the violation of         law becomes apparent. In view of the fact
women’s rights, numerous severe injuries        that reproductive medicine has been
to the health of women and their children,      declared legal practice and the fact that it
eugenics, discrimination of the disabled        is as good as impossible to keep up with
and congenitally diseased, and the use of       the latest technological developments, the
embryonic tissue for dubious scientific         law can only actually be brought to bear
purposes.                                       when it is much too late. This is quite
    The new Embryo Protection Law is            apart from the fact that the government
also problematic in the extreme. It makes       has no interest in prosecuting practitioners
heavy weather of protecting embryos from        of this technology. In no way do the new
the clutches of researchers, dispenses with     regulations do justice to the problem. On
any kind of control or supervisory              the contrary, they actually support current
mechanisms, and, as such, can only be           developments and the uncontrolled
designed to have purely symbolic value. It      application of reproductive technologies.
only half-heartedly bans embryo research            The laws on reproductive engineering
while at the same time endorsing                will inevitably fail to fully address the
reproductive medicine and gamete and            problem as long as they only treat women
germ line cell research, and can only be        in passing or, at best, treat them as a
seen as a compromise between the                natural resource and the objects of
research lobby and life protectionists.         experimentation. It is utterly incredible to
Antiabortionists have been appeased by          defend the embryo’s right to human
finding a formula for embryo protection         dignity while trampling on the woman’s
that pays lip service to restricting freedom    right to human dignity in this way.
of research. The interests of the science       Throughout, women are regarded as
                           New German Laws on Reproductive Engineering                        221


nothing more than a receptacle for eggs          and heterologous insemination have been the
that are taken from them, fertilized, and        central issue of controversy between the
subsequently reim-planted. Attention is          political parties for years. The Bavarian
focused on the woman’s attitude to               Conservatives       insist     that     artificial
                                                 insemination should only be permitted for
pregnancy and the consequences this
                                                 married couples; the SPD wants to allow it for
might have for the embryo – not on her           firmly established non-marital partnerships
relationship to the child growing within         and make sperm donation a criminal offence;
her. On the one hand, the Embryo                 the      Liberals    advocate       heterologous
Protection Law places an increasing              fertilization. The only issue on which they all
number of restrictions on women’s control        agree is that A.I.D. should not be available to
over their own reproductive abilities and        single women and lesbians. It has proved
pregnancies and, on the other hand, lends        impossible to introduce statutory regulations
the embryo an independent legal status of        covering all these issues to date. During the
its own, thus effectively placing it in          committee stage the ruling parties put forward
                                                 a number of compromise proposals that would
antagonism with its prospective mother.
                                                 have permitted A.I.D. under certain
    And, last but not least, there is the        circumstances but agreement was not reached
question of technology assessment. The           and they were not included in the final version
experience of test-tube fertilization clearly    of the Embryo Protection Law.
demonstrates how necessary it is to                  3. In May 1990 an official body, the Joint
evaluate technologies, particularly in the       Federation-Länder Working Party on Genome
medical field, and how important it is for       Analysis, submitted a comprehensive report
this to be done before and not after new         including recommendations for legal controls
methods of treatment are applied to              on genome analysis. Legislative proposals
humans as a matter of common practice.           based on these recommendations will probably
                                                 come before parliament during the current
The whole point of technology assessment
                                                 session.
is to inquire into the individual, social, and       4. The Central Ethics Commission of the
ecological compatibility of diagnostic           Federal Chamber of Physicians established
methods and therapies and to remove all          professional rules of conduct with regard to
doubts as to their safety and effectiveness.     the application of genetic therapy on humans
Moreover, with genetic engineering               at the beginning of 1989. They are of no
actually being applied in medicine, there        clinical relevance at present but they do
is the added danger of more and more             prepare the ground for future genetic
human experiments being conducted in             experimentation on humans and provide a
hospitals and medical practices all over         framework within which genetic therapy is to
                                                 be permitted in Germany (cf. Zentrale
the country. It may well soon become
                                                 Kommission, 1989: Item 4.4).
urgently necessary to introduce statutory            5. § 10 of the Embryo Protection Law
controls to ban a branch of medicine that        stresses that no-one may be obliged to submit
is “using up” and “destroying” human             to or to be party to artificial fertilization
individuals in ever greater numbers. Yet,        treatment.
in view of the lamentable failure of the             6. For more details on this point cf.
legislature to fully address the issues          Chapter “Das Embryonenschutzgesetz – eine
raised by reproductive engineering and           rechtspolitischer Bewer-tung” in Fraktion Die
embryo research (and this applies not only       Grünen im Bundestag (Ed.), 1990, pp. 25–31.
to Germany), it must be feared that any              7. There was massive criticism of a draft of
future laws will be more likely to open up the   the Embryo Protection Bill presented by the
floodgates than to scotch the snake before it    Federal Minister of Justice in 1986 envisaging
is too late.                                     the prosecution of pregnant women who
                                                 “irresponsibly” cause damage to the embryo
               ENDNOTES                          or fetus within their bodies as a result of
                                                 alcohol, nicotine or medication. This was no
   1. Cf. the final version published in         longer included in the Embryo Protection Law
Bundesgesetzblatt I, p. 2746.                    now in force although legal technicalities were
   2. The conflicting positions on homologous    the only reason for it being omitted – the law
222                                       ANNE WALDSCHMIDT

only deals with the abuse of reproductive           Prevention of Congenitally Diseased Offspring
engineering and does not relate to what             (1933) provided for compulsory sterilization
happens after implantation of the egg in the        for the following diseases: congenital idiocy,
womb. This is covered by the Abortion Law.          schizophrenia, manic-depressive disorders,
But to defer a problem is not to solve it.          epilepsy, hereditary St. Vitus’ Dance (Chorea
According to the Federal Government an              Huntington), hereditary blindness, hereditary
amendment is already in preparation to              deafness, severe cases of hereditary physical
criminalize anyone irresponsibly damaging           deformity and severe cases of alcoholism (cf.
embryos or fetuses by medication or X-rays. It      Weingart et al., 1988: 465).
is unlikely that pregnant women will be                14. This is not an inadvertant lapse but a
exempted from this amendment.                       clear strategy as is demonstrated by the fact
    8. The Federal Chamber of Physicians            that the modifications originally proposed by
(Bundesärzte-kammer (BÄK)) is the private-          the ruling parties included a further disease.
law association of the Chambers of Physicians       Among other things, sperm donation was to be
of the German Länder which, in turn, are            permitted in order to help (I quote) “prevent
public-law entities in which all certified          extremely severe cases of congenital disease
doctors are statutory members. The Federal          (e.g. Chorea Huntington)”. However, lack of
Chamber of Physicians is the not undisputed         agreement on the issue of A.I.D. prevented this
central policy-making body representing the         proposal from being taken up.
status and professional interests of the medical       15. A typical example of the SPD position is
profession.                                         given      by     Wolf-Michael      Catenhausen,
    9. This was discussed, for instance, at a       spokesman of the SPD Parliamentary Group
conference in Bochum on the ethical problems        on technological affairs, in an interview on the
of genome analysis and genetic therapy held         Embryo Protection Law in die Tageszeitung,
by the Centre for Medical Ethics, Bochum,           October 23, 1990.
from October 5–6, 1989.                                    The party of Democratic Socialism
   10. In effect, there was a moratorium on         (PDS) (the Socialist Unity Party in what was
embryo research in the Federal Republic of          the GDR) which entered the Bundestag after
Germany up to the end of 1990 based on the          German unification on October 3, 1990, was
professional code, at that time the only official   able to put forward its position in the plenary
set of regulations referring to these activities.   debate at the final reading of the Embryo
The Federal Chamber of Physicians had issued        Protection Law. In fact, the PDS spokeswoman
guidelines for research on early embryos in         even came out in favour of surrogate mother-
1985 and these were incorporated into the           hood! (cf. Verhandlungen des Deutschen
rules of professional conduct that are laid         Bundestages, October 24, 1990: 18215)
down by the Chamber of Physicians in the               17. In the Federal Republic of Germany (as
individual Länder. The guidelines condoned          it was before unification) IVF had been
examinations of this kind but only after            included in the list of benefits financed by the
previous authorization from the Federal             statutory health insurance scheme in 1985. A
Chamber of Physicians’ “Central Commission          new law was passed at the beginning of 1989
To     Safeguard     Ethical     Principles    in   to cut the costs of public health care and
Reproductive Medicine, Research on Human            restructure the health service in the course of
Embryos and Genetic Therapy” and it had             which IVF was struck from the list of benefits.
been agreed that no such authorization would        Following massive protests and lobbying from
be granted before statutory regulations had         the medical profession and from disadvantaged
come into force. At no time has the Federal         couples, who founded self-help organizations
Chamber of Physicians been near categorically       to support their cause, the Federal Government
rejecting embryo research of any kind.              obviously felt compelled to reinstate this
   11. cf, Statement of the Academy for Ethics      benefit.
in Medicine, March 3, 1989, (p. 7) and a               18. cf. Bundesratsdrucksache 314/90 and the
German Press Agency (dpa) report, March 13,         final version of the law published as KOV-
1990.                                               Anpassungsgesetz 1990 in the Bundesge-
   12. From 1933 onwards the sterilization and      setzblatt I, p. 1211.
euthanasia programmes conducted by the                 19. At least, § 2 clause 1 and § 28 clause 1
National Socialists were extended to apply to       Sozialgesetzbuch (1988) allow this inter-
more and more categories of the population.         pretation and there are also provisions to this
   13. The National Socialist Law for the           effect in the Arzneimittelgesetz (1976).
                            New German Laws on Reproductive Engineering                      223


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