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Parent Category: Justice & Security

Category: Law Commentaries

Created on Wednesday, 07 July 2010 00:00

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Court gives doctors right to pre-select embryos for implantation

It was an unusual story which began when a 47-year-old fertility doctor, who was treating three couples with family histories of congenital illness, ran some tests to establish whether the embryos he had fertilized bore signs of hereditary defects. Some did.

He revealed his findings to his patients who turned down his offer to have the imperfect embryos implanted in their wombs. The healthy ones were transferred while the others were left to die.

Uncertain about the legality of his own actions, the medic subsequently reported himself to the relevant authorities and a court hearing in the German capital ensued. In May of 2009, he was given six months on probation and sent on his way.

On Tuesday the controversial issue came up in front of the Federal Court of Justice in Leipzig, and it too ruled in the doctor's favor.

Strict rules

Germany has long said the practice of preimplantation genetic diagnosis (PGD), which sees the genome of one or two cells of a several-day-old embryo tested for certain abnormalities, is only allowed in exceptional circumstances.

These include couples deemed at high risk of having a child with a severe genetic condition, embryos with chromosomal disorders that suggest they would not reach the stage of extra-uterine viability, and women who, despite repeated fertility treatment, have not managed to conceive. A position the high court upheld in the ruling.

Germany's high court has ruled that doctors are allowed to pre-select healthy embryos for their patients. But the decision has re-ignited a moral debate about ethics and a woman's right to choose.

For everyone else, the strict guidelines of the Embryo Protection Act rule pre-implantation scientific screening right out of the picture. It is a hugely controversial issue and opinions divide as easily as the cells they debate.

Proponents of the law say the clue is in the law's name and every embryo has the same right to life as the next one. In an interview with the Sueddeutsche Zeitung newspaper, medical ethicist Giovanni Maio said that to pre-select is to renounce the unconditional acceptance of every human being.

"I think it is wrong to say that because a life is sick it should not be," Maio said. "The danger is that we strong ones say that lives we consider to be less valuable should not be, but we shouldn't sit in judgment on the value of another life."

Automatic selection

On the other side of the fence, critics argue that the current restrictions are fundamentally flawed. Dr. Julia Bartley, consultant in reproductive medicine at Berlin's Charité hospital told Deutsche Welle that even without PGD, fertility doctors automatically practice selection.

"We fertilize as many eggs as there are and we let them grow, then after three days we check them to see if they look good or not," Bartley said, adding that they quite logically choose the ones that look most healthy.

It would only be one step further to check what the eye can't see with genetic testing. And given that more embryos are likely to die than survive, why does German stand so firm on the issue? Bartley believes the root is embedded in the country's darkest chapter of history.

"It is because of euthanasia during the Nazi era," she said, referring to the systematic killing of those with disabilities. "What happened back then has left us with a special responsibility."

Legal mismatch

Yet for all that, she and many others besides feel there is something skewed about the way Germany handles preimplantation genetic diagnosis versus prenatal diagnosis (PND). Twelve weeks into pregnancy, women are at liberty to request a chromosome analysis test, and many do. If at that time abnormalities show up, the mothers-to-be can legally terminate their pregnancies. And again, some do.

"What we have is a schizophrenic situation where we cannot do a PGD but where the mother can abort the fetus if it is handicapped in one way or another," Bartley said, adding that that is not ethically correct.

Lawmakers account for the discrepancy in saying that the woman's health must be taken into account, and to learn 12 weeks into a pregnancy that the child she is carrying will be born with genetic defects, can, they say, cause mental stress.

But so, argues Bartley, can aborting at such a late stage. Patients cannot be prepared for late-stage termination and it can have a desperately traumatizing effect.

"It creates conflicts that would be totally unavoidable," she concluded.

Author: Tamsin Walker
Editor: Mark Mattox

Source: Deutsche Welle, 06 July 2010