(Aug. 31, 2010) On July 6, 2010, the German Federal Court of Justice (Bundesgerichtshof) issued a decision that permits pre-implantation testing to screen for serious genetic defects (Docket No. 5 StR 386/09, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Ger
&nr=52897&linked=urt&Blank=1&file=dokument.pdf). The decision interprets section 1(1) no. 2 of the Embryo Protection Act (Embryonenschutzgesetz, Dec. 13, 1990, BUNDESGESETZBLATT I at 2746, translation available at http://www.bmj.bund.de/enid/Publications/Embryo_Protection_Act_19u.html), according to which criminal liability ensues if in vitro fertilization is used for any purpose other than bringing about a pregnancy, as well as section 2 (1) of the Act , which penalizes the misuse of human embryos, defined as the use of an embryo for any other purpose than its implantation to bring about a pregnancy. Until the July 6 decision, neither case law nor the legal literature had clarified whether pre-implantation genetic diagnosis was permissible, considering that it would lead to the destruction of embryos that tested positive for genetic defects (ERWIN DEUTSCH & ANDREAS SPICKHOFF, MEDIZINRECHT 494 (6th ed. 2008)).
In the case at issue, a physician had carried out pre-implantation genetic diagnoses for three patients by conducting biopsies on blastocysts and subsequently testing the trophectoderm cells obtained by means of the procedure. In each of these cases, two out of three embryos tested positive for genetic defects, and the embryo whose cells did not test positive was implanted while the other embryos were discarded.
The Court held that the Embryo Protection Act did not deal specifically with such pre-implantation genetic diagnosis, because reproductive technology was not that advanced in 1990, but that the intent of the Act was to permit in vitro fertilization and that the legislature would have permitted pre-implantation testing to avoid the birth of seriously impaired children, if the technology had been available. Although the Act prohibits sex selection, except to avoid sex-linked genetic illness (section 3 of the Act), there is no reason to assume that this prohibition should also apply to the screening of embryos for serious genetic defects, according to the Court. (Press Release No. 137/2010, Federal Court of Justice, Die Präimplantationsdiagnostik zur Entdeckung schwerer genetischer Schäden des extrakorporal erzeugten: Embryos ist nicht strafbar [in German] (July 6, 2010), http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Ger