Year:    2020

Author:    Dederer, Hans-Georg

Jahrbuch für Recht und Ethik / Annual Review of Law and Ethics, Vol. 28 (2020), Iss. 1 : pp. 53–82

Abstract

Innovative techniques of developmental biology facilitate the artificial creation of embryo-like entities. This contribution analyses, first, whether certain artificially created embryo-like entities are ‘embryos’ within the meaning of existing statutory law definitions laid down in the Embryo Protection Act, the Stem Cell Act and the Patent Act. These definitions are non-uniform and their interpretation and application with regard to artificially created embryo-like entities is not always conclusive. Accordingly, the legal definitions of the term ‘embryo’ should be harmonised and, thereby, adapted to the state of developmental biology. Any such legislative efforts need to be in conformity with the constitution, primarily with the guarantee of human dignity (Article 1(1) of the Basic Law). However, said provision cannot provide guidance to the legislature because the constitutional status of both embryos and embryo-like entities in vitro is highly disputed. It is held that this irresolvable debate is due to a fundamental lack of a widely shared experience that such entities possess a supreme unique value. This article argues that in such a situation it is, in the first instance, for the legislature (i. e. parliament) to determine the legal status of embryos and embryo-like entities in vitro. This argument is based on a particular doctrinal approach according to which the individual right to respect of one’s human dignity arising from Article 1(1) BL depends on recognition of the relevant entity as being a ‘human’ or a member of ‘humankind’ respectively. Such recognition has, hitherto, not been accomplished with a view to embryos and embryo-like entities in vitro. Against this backdrop, for the time being, the legislature may determine the legal status of embryos and embryo-like entities in vitro, lay down rules regarding their creation and particular use, and, especially, define the legal term ‘embryo’, albeit within some outer constitutional limits. The article, finally, analyses several elements of, and submits a proposal for, a new legal definition of the term ‘embryo’.