The protection of the embryo in German family law

Abstract

The legal status of the embryo is a surprisingly unsettled question in German law. Traditionally, family law deals with parents and children, it regulates custodial powers of the parents and the protection of children. Since an embryo is not yet a child, it is not per se included in statutory provisions which speak of 'children' or 'minors'. Increasing knowledge of the development of human life and modern techniques of artificial insemination in vitro and in vivo have led to a growing awareness of the human dignity to be attributed to an embryo. This aware­ ness has caused embittered discussions on the abortion issue. While the lawfulness of abortion is primarily a question of criminal law, the discussion has recently expanded into the family law field. I f an embryo constitutes human life, an analogous application of the provisions on custody and child protection seems an automatic conse­ quence. The issue is essentially one of protection: should the embryo in the mother's womb be afforded the same, or at least a similar protection as a child? In legal terms: can you ward a foetus, and should we ward a foetus? This question leads to two different sets of problems. First, is the embryo protected from abortion not only by the criminal law, but also and independently by family law? Secondly, may the state as parens patriae protect the embryo from any other conduct by the pregnant woman, such as sub­ stance abuse, drinking alcoholic beverages, and compar­ able dangers? Though this article will focus on the as yet rather undeveloped German legal discussion of these problems, it will also include some comparative materials with regard to English and US law. This article wil l not discuss dangers for the human embryo from scientific progress in the field of medically assisted procreation, in particular 'leftover' embryos and prenatal medical treatment or genetic altera­ tion of the embryo. In the field of private law, child protection 'post factum' is relatively well established. Provided the child is born alive, he or she is entitled to claim damages for injuries inflicted before birth or even before conception. It is disputed, however, whether the parents themselves are liable for damages too, i f they have caused injuries to the embryo, although it appears damages may be claimed i f the parents, or one of them, suffered a venereal disease, which has been transferred to the embryo. In other claims there is a tendency to distinguish between the father and mother: the father who negligently or intentionally has injured the embryo is treated like any other third party, while the mother, according to some legal authors, should not be held liable because of her right to personal freedom and pri­ vacy. I f the child has not been prenatally injured by human acts but has been born with pre-existing defects, or has been born healthy but unwanted by his or her parents, the German courts have had to decide the same issues as courts in other countries, known as 'wrongful birth' and 'wrongful life' actions. The results of such cases have been essentially the same as those in the USA or in the UK: while parents can recover damages for the birth of the child (more precisely, for their unwanted support obligations towards the child), the childs claim for 'wrongful life' has been rejected.