Preimplantation genetic diagnosis – genetic testing of embryos permitted in individual cases

In individual cases, controversial genetic tests on embryos may be considered non-criminal according to the case law of the 5th Criminal Senate of the Federal Court of Justice.
The decision was based on the following facts:
A Berlin doctor had performed genetic tests on embryos in three couples with hereditary predispositions. One of the women already had a disabled daughter, another had suffered three miscarriages. As part of a preliminary examination to detect genetic defects in embryos, the Berlin gynecologist had implanted only those embryos that did not exhibit genetic defects in 2005 and 2006 using so-called preimplantation genetic diagnosis (PGD). He allowed the others to die. The doctor subsequently reported himself to the police, as his conduct had previously been considered punishable under the Embryo Protection Act. Among other provisions, the Embryo Protection Act provides for a prison sentence of up to three years for anyone who uses an extracorporeally created embryo for a purpose other than its preservation (Section 2 (1) of the Embryo Protection Act).
The Berlin Regional Court initially acquitted the doctor in 2009. It argued that the wording of the Embryo Protection Act did not prohibit PGD. The Berlin Public Prosecutor's Office subsequently filed an appeal, seeking final clarity through a supreme court ruling.
In its ruling of July 6, 2010 (5 StR 386/09), the 5th Criminal Senate of the Federal Court of Justice has now ruled on the admissibility of PGD in a narrowly defined exceptional case. The Leipzig judges deemed preliminary testing to detect genetic defects in embryos not punishable if couples have a predisposition to severe hereditary defects. In this case, doctors may continue to examine fertilized eggs for defects during artificial insemination, i.e., fertilization of eggs in a test tube, and select only healthy cells for fertilization. The criminal law provisions of Sections 1 Paragraph 1 No. 1 and 2 Paragraph 1 of the EschG lack the specificity required for criminal law.
To the extent that critics fear that the ruling could lead to a targeted sorting out of embryos based on gender or other characteristics, this is not to be expected due to the clear restriction imposed by the criminal judges.
It also remains to be seen whether the Federal Constitutional Court will still have to deal with the issue or whether the federal legislature will see fit to clarify the wording or amend the Embryo Protection Act.

This publication can also be found on the website of the law firm Dr. Kauch .