Speech: Draft Act to Regulate Pre-implantation Genetic Diagnosis

Check against delivery.

Colleagues,

It seems as if everything has already been said on the subject of the permissibility of pre-implantation genetic diagnosis (PGD), and as if almost everybody has had something to say about it. The arguments for the different points of view have been exchanged.

When looking at the great variety of opinions, one might agree with the German Ethics Council’s unanimous finding that it is currently not possible to establish without dispute the constitutional status of an in vitro embryo, which is at the core of the problematic issue of PGD. Or to put it differently: It is not possible to resolve the issues surrounding PGD by falling back on a clear constitutional status of the embryo.

Far too many non-legal, metaphysical, religious and sometimes even irrelevant opinions, considerations and ideas are currently playing into the discourse on PGD and the legal status of an in vitro embryo to enable a broad social consensus.

Even though this new level of disagreement does not come completely unexpectedly, it is nonetheless surprising given that we, as the German legislator, already gave a legal context to the need and the scope of protection of embryos in vivo by reforming Section 218 of the German Criminal Code. We did this in a way that was fully in accordance with the requirements of the Basic Law as the Federal Constitutional Court confirmed in a judgment regarding this subject matter.

One aspect of this reform is that, pursuant to Section 218 et seqq. of the Criminal Code, an abortion, which in principle incurs criminal liability, is exempt from punishment within the first 12 weeks of pregnancy. An abortion at a later point of time is also not unlawful if it is imperative in order to avert a danger to the life of a pregnant woman or a danger of grave injury to her physical or mental health.

The German Embryo Protection Act, which was adopted in 1991 and last amended in 2001, also follows this clearly constitutional line.

This has, for instance, been expressly confirmed in an expert manner by the Federal Court of Justice in its most recent judgment regarding this subject of 6 July 2010 (case no. 5 StR 386/09).

Even though the Federal Court of Justice stated that the Act’s wording did not provide for either the clear rejection or the clear approval of PGD, the Court concludes from the exception to the ban on using selected sperm cells for gender selection contained in Section 3 subsection 2 of the Embryo Protection Act that the legislator did indeed want to take account of the conflict situations parents may be in because of the risk of hereditary diseases. And I think that the Court is right to come to this conclusion.

“A married couple cannot be expected knowingly to take the risk of having a sick child if there may be the possibility in future to have a healthy child thanks to sperm selection,” the legislator stated unambiguously at the time.

In the recommendation for a resolution then given by the Legal Affairs Committee, that has now been quoted by the Federal Court of Justice, it is further stated that there was a risk that in the event of a child being conceived that suffered from a hereditary disease which could lead to the child's death, an abortion might be performed.

Due to the value decision made by the legislator in this regard as well as the reasons it gave for this, the division of the court which rendered the judgment could not assume that the legislator, which had, in Section 1 subsection 1 no. 2 of the Embryo Protection Act, given its unconditional permission for extracorporeal fertilisation in order to induce a pregnancy, would have prohibited pre-implantation genetic diagnosis of pluripotent cells, which is appropriate to reduce grave health risks, if this procedure had already been available at the time of this value decision.

The Federal Court of Justice further explained that a statutory ban on PGD could ultimately not be deduced either from the fact that, according to Section 15 subsection 1 of the German Genetic Diagnostics Act which, in essence, entered into force on 1 February 2010, prenatal genetic testing is expressly allowed (only) during pregnancy.

According to the Federal Court of Justice, this is because the legislator had expressly excluded this problematic issue from the scope of the Act.

The court concludes with compelling reasoning that, had the legislator wanted to strictly exclude PGD with the Genetic Diagnostics Act, one could − in view of the longstanding dispute known to the legislator about the de lege lata permissibility of this genetic test − have expected that explicit regulation be included in the Genetic Diagnostics Act or the Embryo Protection Act, or that explicit statements in this regard would at least be contained in the legislation-related material.

However, as the Federal Court of Justice rightly notes, this did not happen. What does this mean then?

As demonstrated on the basis of relevant judgments of the two highest German courts, the Federal Constitutional Court and the Federal Court of Justice, the concept of embryo protection, on which existing legislation is based, as well as the legal status of embryos, are not only in conformity with the constitution but can easily be applied to pre-implantation genetic diagnosis, which is strictly limited to the inducing of a pregnancy and which is therefore permissible.

In my opinion, the only goal of an Act on PGD can be to specify − based on the embryo protection concept covered by the law as it currently stands − the requirements and conditions for the lawful application of PGD and, in particular, to take precautions that exclude the misuse of PGD or its results.

A ban on PGD would drastically change the existing legal situation; it would lead to inexplicable and constitutionally very problematic contradictions regarding the law on reproduction and would cause exactly what the German legislator had wanted to avoid because this would be unreasonable: hard-heartedly closing one’s eyes to the unspeakable pain of parents who have to give up their desire for a child or who can only fulfil this desire by opting for artificial fertilisation with the risk that the child would suffer from severe – in some cases fatal – hereditary diseases.

I for my part would not want to be the one who has to explain a ban on PGD to these parents.

And what is more, dear colleagues, do we really believe that the application of PGD that aims at the identification of genetic disorders can be prevented in the long term? PGD tourism to some of our neighbouring countries has already begun.

The proposal made by Ulrike Flach and others, that I support and promote, provides for PGD restricted to the identification of serious and very severe diseases. It will not open a door to the feared human selection.

However, I am afraid that a strict ban on PGD would open a completely different door.
I think that, sooner or later, we would then hear from those who would use the inconsistencies and contradictions that would arise in our legal system to question the solution we have established in terms of abortion law in Germany, which took a great deal of effort and has, in my opinion, proven very successful.
Thank you very much for your attention.