Embryo Protection Act

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Basic data
Title: Embryo Protection Act
Short title: Embryo Protection Act
Abbreviation: ESchG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Administrative law , ancillary criminal law
References : 453-19
Issued on: December 13, 1990 ( BGBl. I p. 2746 )
Entry into force on: January 1, 1991
Last change by: Art. 1 G of November 21, 2011
( BGBl. I p. 2228 )
Effective date of the
last change: 		December 8, 2011
Please note the note on the applicable legal version.

The Embryo Protection Act (ESchG) is a German criminal law regulating in vitro fertilization . In particular, it is intended to prevent the improper use of IVF techniques to generate human embryos and protect human embryos from being used for non-profit purposes, for example for research purposes.

Embryo within the meaning of the law

According to Section 8, an embryo within the meaning of the law is already the fertilized, viable egg cell . An egg cell is considered capable of development within 24 hours after nuclear fusion, unless it has already been determined that the fertilized egg cell cannot develop beyond the single-cell stage. This definition is therefore broader than the medical term embryo.

Penal regulations

Be criminalized

  • the improper use of reproductive techniques ( § 1 ) with imprisonment of up to three years or a fine , if an unfertilized egg cell is transferred from someone else, if fertilization is carried out for a purpose other than pregnancy, more than three embryos are transferred within a cycle, by intratubars Gamete transfer more than three egg cells are fertilized, the embryo is removed from the uterus before implantation . In principle, this includes the use of the embryo for purposes that are not intended to be pregnancy ( § 2 ). The artificial insemination of a surrogate mother or the artificial transfer of an embryo to a surrogate mother are also punishable. For most penal provisions, attempting is also punishable. The woman from whom the egg or embryo originated, the woman to whom they are transferred and, in the case of surrogacy, the man or woman who wants to take in the child after the birth are not punished.
  • the artificial fertilization of an egg cell with a sperm cell that has been selected according to its sex chromosome ( § 3 ), unless this serves to avoid muscular dystrophy or a similarly serious hereditary disease. The threat of punishment amounts to imprisonment of up to one year or fines.
  • unauthorized fertilization or transmission or artificial insemination after death ( Section 4 ). Without consent, fertilization or transmission is not permitted. However, the woman who is fertilized remains unpunished.
  • the artificial modification of the genetic information of human germ line cells ( § 5 ). The threat of punishment is imprisonment for up to five years or fines. Does not fall under this prohibition
    • Changes in germ cells not intended for fertilization and
    • Changes in the body's own cells not used for transmission as well
    • unintended changes caused by vaccinations, radiation or chemotherapy.
  • the clones ( § 6 ) with imprisonment up to five years or fines. The attempt is also punishable.
  • the mixing of genetic information from different egg cells, which leads to the formation of chimeras or hybrids. The threat of punishment is imprisonment of up to five years or fines.

The Embryo Protection Act is thus part of the subsidiary criminal law .

ESchG and pre-implantation diagnostics

The ethical principles in the law, which was last amended in 2011, are still controversial with regard to their practical consequences. Until a ruling by the Federal Court of Justice in July 2010, the law was interpreted to mean that the law forbids pre-implantation diagnostics . The BGH determined, however, that PGD cannot be punished under the ESchG in certain cases, since this regulation does not allow inferring that PGD is forbidden with the certainty required with regard to Article 103, Paragraph 2 of the Basic Law. In addition, when the ESchG was enacted, the legislature did not have the PGD “developed abroad at that time” in mind. On July 7, 2011, the Bundestag finally - after a long struggle - passed the Preimplantation Diagnostics Act (PräimpG), which contains the introduction of a new Section 3a and allows PGD within narrow limits: There is a high risk of a serious hereditary disease or a high probability a stillbirth or miscarriage according to § 3a Abs. 2 ESchG. Added to this are the requirements for the woman's written consent (Section 3a (2) ESchG) after comprehensive information and advice, the consent of an interdisciplinary ethics committee and a specially qualified doctor in a PGD center approved for this purpose, cf. Section 3a (3) EschG. The details were regulated in the pre-implantation diagnosis ordinance of the federal government with the consent of the Federal Council.

Further development of the Embryo Protection Act

The current legal situation is described by many doctors and scientists as antiquated. Couples are forced to go abroad for treatments that are prohibited in Germany (e.g. egg donation ). The National Academy of Sciences Leopoldina and the Union of German Academies of Sciences are calling for a comprehensive revision of reproductive medicine and a uniform law on reproduction in Germany. We recommend u. a. the legalization of egg donation and embryo selection in the context of artificial insemination.

See also

Bibliography

  • Hans-Ludwig Günther, Peter Kaiser, Jochen Taupitz: Embryo Protection Act. Commentary on the Embryo Protection Act. Kohlhammer Verlag, 2008; 2., rework. Edition. Ibid 2014, ISBN 978-3-17-021260-2 , urn : nbn: de: 101: 1-2015010619995 .
  • Romano Minwegen: Possible problems in connection with the stem cell law and the embryo protection law. In: Legal Theory. Journal for logic and legal methodology, legal informatics, communication research, norms and action theory, sociology and philosophy of law. 37th Volume (2006), ISSN  0034-1398 , pp. 513-531.
  • Rudolf Neidert: The overrated Embryo Protection Act - what it forbids and does not forbid. In: Journal for Legal Policy . 2002, Issue 11, pp. 467–471, JSTOR 23427165 (beginning of article; free access after registration).
  • Marcel Reuter: The decision of the BGH on pre-implantation diagnostics and its effects on legislation. In: Heidelberg student journal for law . 2011, Issue 3, ZDB -ID 2147872-7 , pp. 535-551 ( PDF; 109 kB ).

Web links

Individual evidence

  1. ↑ Federal Court of Justice allows genetic tests on embryos. Reuters , accessed July 6, 2010.
  2. ↑ Judgment of the 5th Criminal Senate of July 6, 2010 - 5 StR 386/09. In: juris.bundesgerichtshof.de, accessed on August 16, 2018.
  3. ^ Preimplantation Diagnosis Act - text and amendments; Procedure in the Bundestag. In: bundestag.de, accessed on August 16, 2018.
  4. ↑ Preimplantation Diagnostic Ordinance
  5. ↑ Do we need new rules for reproductive medicine? Retrieved October 17, 2019 .