The successfully negotiated case before the Federal High Court concerned the Berlin gynecologist who conducted preimplantation diagnostic measures in his fertility clinic on eight extracorporeal generated embryos in the blastocyst stage. The examined cells in this stage had been no more totipotent but only pluripotent.

The gynecologist justified his action by saying that there was a high risk that the three patients in question pass genetic diseases to their infants. The gynecologist had detected serious genetic defects in four of the eight embryos. With the approval of the patients, the four egg cells were transferred into the uterus of the mother without anomalies. On the basis of the examination results, the patients had decided not to transfer the suspicious egg cells into the uterus. Consequently these egg cells were not incubated and discarded.

The gynecologist had previously asked the opinion of a jurist, who had found the situation unresolved by the Supreme Court, though had assumed exemption from punishment, because § 8 section 1 of the embryo protection law (ESchG) only equates totipotent cells in the blastomere stage with an embryo and does not explicitly regulate PGD.

To clarify the legal situation, the gynecologist had charged a voluntary declaration after the conduction of the investigations. The procedure was opened due to suspecting that there have been breaches of § 1 section 1 no. 2 and § 2 section 1 ESchG. Since §1 prohibits “the artificial fertilization of an egg cell, when the aim thereof is some other purpose than impregnate the woman who produced the egg cells”, and § 2 stipulates that a human embryo should not be disposed of or misused. In the case of the Berlin gynecologist it was suspected that he used PGD first to pursue another purpose than bringing about pregnancy, and secondly that he used the four embryos improperly by discarding them.

In May 2009 the gynecologist was acquitted from both accusations by the Berlin regional court, because it has been proved that the purpose of the medical conduct was not PGD in itself. Rather it was explicit that the desire of the patients to bring about pregnancy was the aim of both interventions and the object of the treatment agreement. On the other hand the gynecologists didn’t misuse the embryo, as he could not force the transfer of the embryo into the uterus of the mother. Rather the reservation of consent of the patients was the reason behind the discarding of the embryos. The gynecologist could have made himself liable for criminal sanction, if he had conducted a pregnancy using the eggs in question without the approval of the woman. There was no other option left for the gynecologist than the passive “letting die”, and this is not to equate with the “active discarding”, to which the law refers.

It has been further claimed that since the examination was carried out on pluripotent cells, the respective embryos were not harmed. To counteract the hazard of the expansion of selection criteria, the medical council finally explicitly requested the lawmaker to include a regulation for PGD in the Embryo protection law (ESchG). The prosecution authorities appealed against the judgment.

In July 2010 the fifth Leipzig criminal division, as the highest authority of the federal Supreme Court, finally confirmed the acquitting judgment of the Berlin regional court (BGH). In a first press release the BGH stated that preimplantation genetic diagnosis is not considered punishable if it is used to detect serious genetic damages of extracorporeal embryos, because “a prohibition of PGD which was only being developed abroad when the embryo protection law was enacted in 1990 cannot be derived with the finality necessary in  criminal law”, particularly as, according to the current state of knowledge, a PGD in the blastocyst stage does not harm the embryo and is thus not contrary to the intended prevention of misuse in the embryo protection law (EschG). On the matter of PGD it is further stated that it could “not be assumed that the lawmaker would have prohibited it if it had already been available at the decree of the embryo protection law”.

The Berlin regional court finally emphasized that “the object of its decision is only testing cells for serious genetic disorders within the framework of PGD to reduce the mentioned dangers”. With this statement, the BGH wants to prevent a slippery slope towards an unlimited screening of embryonic cells, for example for the purpose of choosing the desired gender of the embryo.

This module is a version shortened by the scientific and ethical aspects and expanded by the information on the judgement of the Federal Court of the article: