Which double standard serves a unique purpose


Prof. Dr. Jochen Taupitz

To person

is managing director of the Institute for German, European and International Medical Law, Health Law and Bioethics at the Universities of Heidelberg and Mannheim. His main focus is on medical law, health law (including medical and pharmaceutical law as well as human genetics law), protection of individual self-determination and personal rights. He is a member of the German Ethics Council.

When is research with human embryos allowed? Jochen Taupitz with an introduction to the legal dimension of embryo protection and stem cell research.

A scientist points to a container of stem cells in a University of Georgia laboratory in Athens. (& copy AP)

The Embryo Protection Act (EschG) and the Stem Cell Act (StZG)

The Embryo Protection Act of 13.12.1990 prohibits any use of a human embryo for a purpose that does not serve its preservation. This means that human embryos may not be used to obtain embryonic stem cells.

The embryo within the meaning of the ESchG is the fertilized, viable human egg cell from the time of nuclear fusion, furthermore every "totipotent" cell removed from an embryo, ie every cell that divides and develops into an individual if the corresponding further requirements are met able. The overwhelming opinion is that viable human egg cells that have been produced using the cell nucleus transfer process (Dolly method) are embryos within the meaning of the ESchG. This means that they too cannot be used as a source for obtaining stem cells. The situation is different with reprogrammed somatic cells, even if they have (temporarily) achieved the state of totipotency through reprogramming. No egg cell is involved in their production, which is a prerequisite for the creation of an embryo in the sense of the ESchG.

However, the ESchG does not prohibit the import and use of embryonic stem cells. This meant that embryonic stem cells could be used for research purposes in Germany, which could only be obtained abroad due to the prohibitions of the ESchG. In order to prevent any incentive emanating from Germany to consume human embryos abroad for German research, with the Stem Cell Act of April 25, 2002, the legislature also fundamentally prohibited the import and use of embryonic stem cells. Only if the stem cells were obtained abroad before a certain reference date (originally January 1, 2002; postponed to February 1, 2007 by law of August 14, 2008), the import is permitted - provided that further strict requirements are met. The legislature was guided by the idea that the embryos that had already been used abroad in the past to produce stem cells cannot be brought back to life anyway. However, some see it as an expression of double standards when German researchers are allowed to benefit from past injustices committed abroad in this way.

The constitutional situation

The legal starting point: the freedom of science

Constitutional law does not ask - like ethics - what people are allowed to do, but what the state can forbid. Under constitutional law, the prohibitions of the ESchG and the StZG are encroachments on the freedom of science (Art. 5 (3) GG). Above all, they can be justified with regard to human dignity and the protection of the life of the embryo. On the other hand, the risk of abuse, dam break arguments and allegations of utilitarianism play a role at most in the context of the proportionality test, but as such do not justify the restriction of fundamental rights.

Protection claims of the embryo

The Federal Constitutional Court has not yet decided whether the embryo is an independent legal subject with its own rights (holder of fundamental rights). The court only demanded that the state (at least) must grant objective protection of human dignity and life (just as the legal system treats human corpses and animals differently than furniture and other things for good reason).

In addition, the court has not yet ruled that the protection to be granted to the embryo must have the same scope and scope from the outset as in relation to the person born. Rather, the court formulated very cautiously that the embryo is entitled to protection of human dignity and life "at least" after implantation in the uterus. The constitution does not exclude a graduated protection of the embryo depending on its developmental status. In particular, the protection of embryos in vitro can be weaker than that of embryos within the womb.

Contrary to popular argument, the development of the embryo is also not a continuous process that cannot be divided into different phases by relevant cuts, with the result that no developmental stage after fertilization can be made arbitrarily the basis of legal differentiation. Rather, the "blueprint" for human life arises during fertilization, but epigenetic factors originating from the mother only give the commands for embryogenesis and thus for further development and viability of the embryo. A widespread view therefore also regards nidation as the earliest point in time from which the embryo can be regarded as the bearer of fundamental rights. From this point of view, the embryo is not protected on the basis of its own legal entity, so that research with embryos does not violate any fundamental rights of the embryo. Rather, the legislature has a broad discretion to regulate when designing and limiting the protection concept incumbent upon it within the objective legal system, weighing the various interests involved.

With the abortion law, the legislature has even made a differentiated regulation for developmental stages after nidation, which grants the embryo / fetus stronger protection in accordance with its further growth (while the conflicting rights of the mother are always the same): Up to the twelfth week of pregnancy the Having counseled women have an abortion with no punishment without having to give a reason, while an abortion is only permitted later if a danger to life or the danger of serious impairment of the physical or mental health of the pregnant woman cannot be averted in any other way ( so-called medical-social indication) (1). Such a risk can also arise from a handicap of the child, namely if the woman cannot be expected to give birth to a handicapped child or to care for and raise it. With this and with the widespread intuitions in society (it is no coincidence that there are special reservations against late abortions), the view that the embryo is entitled to full protection of fundamental rights from the point of its formation "regardless of its person" is incompatible.

human dignity

It does not follow from the guarantee of human dignity in the Basic Law (Article 1, Paragraph 1 of the Basic Law) that the legislature must strictly prohibit research with embryos:

a) In a pluralistic society based on the principle of freedom of belief, there can be very different religious, cultural, political, etc. understandings of human dignity that are not only equally legitimate by law.

The concept of human dignity in the Basic Law is not designed statically. It only defines and develops in interaction with social values, which in turn are subject to change over time.

The Federal Constitutional Court has so far (for good reason) only determined human dignity from the perspective of a possible violation. This means that there is no a priori answer to new situations; Rather, they must always be reassessed on the basis of the then valid views.

It is true that "human dignity" cannot be contrasted with other issues and cannot be "weighed up" against them. However, the verdict of the violation of human dignity itself is based on an overall assessment: Only on the basis of an overall constitutional assessment can the statement be made as to whether a certain measure involves a violation of human dignity. At this level of argumentation, however, there is no prohibition of weighing up, but rather a weighing requirement.

In the context of the necessary constitutional considerations, the protection of life is not to be equated with the protection of human dignity; this is already shown by the fact that the right to life according to Article 2, Paragraph 2 of the Basic Law is only protected in accordance with the more detailed provisions of the law, so that life is evidently quite capable of weighing up. Accordingly, it is undisputed that even the conscious killing of a person can only be measured against the protection of the guarantee of human dignity if there are special accompanying circumstances associated with the killing.

b) According to the Federal Constitutional Court, a violation of human dignity comes into consideration if the person is degraded to a mere object of the state in the sense of a "contemptuous" treatment, a "humiliation", and is exposed to treatment that fundamentally calls his subject quality into question, or if the treatment in a specific case expresses an arbitrary disregard for human dignity. This boils down to a weighing of various constitutionally relevant concerns and the question of the justification of the measure in question, which also brings its goals into focus. In addition (especially from the point of view of arbitrariness) the view must be on comparable facts.

c) The absolute protection of the embryo, as granted by the ESchG, is not only abolished in the "unique situation" of pregnancy by the fundamental permission of an abortion, but also, for example, by the permitted use of coils and other nidation inhibitors, which are used in everyday routine Killing of fertilized egg cells, ie of embryos (!) Leads. According to today's social ideas (which in this respect differ considerably from church ideas) obviously by no means only a serious and concretely experienced conflict situation for the expectant mother can relativize the protection of life of the early womb.

The deceased also has a recognized protection of human dignity, but - "of course" - not with the same intensity as a living person. This also shows that a gradation of protection (not: human dignity) depending on the development status of the person and depending on the different weighting of the objectives pursued by a measure is constitutionally obvious.

Specification: Research with embryonic stem cells

In the long term, the researchers expect that stem cell research will significantly improve the treatment of certain diseases or even make it possible in the first place. The pursuit of such therapeutic goals is not only constitutionally justifiable, it is even required. Because the improvement of medical care serves the dignity and the right to life, health and physical integrity of sick people, to which medical research is also committed in its freedom.

In view of the goals of embryo research, it appears constitutionally justifiable to research embryos within the first days after fertilization that are doomed to die anyway. This can be the case if they were "produced" to bring about a pregnancy, but in the long run (for example because of the death or a change of will of the prospective mother) they can no longer be used for this purpose and therefore no longer have a real chance of life . According to the current legal situation, they can be destroyed (even the ESchG does not forbid this!), So the key question is whether it is ethically and legally justifiable to "just" destroy them instead of using them beforehand for high-level research.

The argument often put forward in relation to research with embryonic stem cells that the research is basically not necessary because there are promising alternatives (e.g. in the form of stem cells from aborted fetuses - that is, from a likewise problematic source [!] - or from umbilical cord blood) admit, suffers from the fact that from a scientific point of view it is currently not possible to make relatively reliable statements about the comparability of the respective development potential of different stem cells. It is also very doubtful whether the comparability of the development potential can be adequately determined at all if comparative research is not carried out with all cell types under consideration. In addition, cell biologists point out that questions about reprogramming cells can only be answered if the processes of (natural) programming are known and understood. All in all, there is hope that research with embryonic stem cells will only be an intermediate stage on the way to the (to-tipotence-avoiding) reprogramming of the body's own cells in sick people.


The Basic Law does not provide cheap answers to the question of whether and under what conditions research with human embryos is or may be permitted. In particular, contrary to popular argument, it is not correct that the categorical protection that the ESchG and also the StZG grant to embryos in vitro is required one-to-one by the constitution. It was not the Basic Law of 1949 that made the decision, but the parliamentary legislature of the 21st century must make the necessary decisions on the basis of a responsible discussion.


(1) The criminological indication that permits an abortion, e.g. after rape, is not to be discussed in more detail here


G√ľnther / Taupitz / Kaiser, Embryo Protection Act, Stuttgart 2008

National Ethics Council, on the import of human embryonic stem cells, Berlin 2001

National Ethics Council, Cloning for Reproductive Purposes and Cloning for Biomedical Research Purposes, Berlin 2004

National Ethics Council, On the question of an amendment to the Stem Cell Act, Berlin 2007

Taupitz, Experiences with the Stem Cell Act, Legal Journal 2007, pp. 113-122