Artificial Insemination in Germany – A Roundup

09Mai09
If a lesbian couple chooses to have a child they have to concern themselves with the question of realization. But what makes the realization in some cases so difficult? Not in every country of the European Union are lesbian couples allowed access to a sperm bank. Only Belgium, the Netherlands, Denmark and the United Kingdom offer the possibility of artificial insemination.

In Germany there is no legal right of access to a sperm bank for a lesbian woman so far. Only heterosexual married women and heterosexual couples in a long-term relationship have the possibility to do so on legal grounds. The sperm banks decide for themselves whether they give lesbians the sperm or not. The fact that a doctor fertilizes a lesbian with donor sperm doesn’t make him chargeable. But there is ‘the German Federal Medical Assembly’ (Bundesärztekammer) who prohibits such assistance on the ground of their regulations.

The German Federal Medical Assembly call themselves ‘the parliament of the medical profession’ in Germany. As one of their tasks they adopt professional regulations valid for all 16 states, which is the Medical Association’s professional code of conduct. These regulations are not legally-binding. A doctor, who acts against these conduct rules is going to be banned from his profession. That explains why doctors are hard to find and why it is so difficult for lesbians to find access to artificial insemination.

But what is behind these regulations? What is the regulation exactly about? If there is no real legal ban, why is it possible for the German Federal Medical Assembly to set up rules in relation to such an important issue? Isn’t it an obligation for the German parliament to pass rules and standards for the general public?

Let’s have a look at the regulation. There is the regulation for artificial insemination adopted by the German Federal Medical Assembly.

Through continuing new discoveries and developments in reproductive medicine, there are always more possibilities and treatments. In Germany, this is not fully regulated, so that the German Federal Medical Assembly fell obliged to close this gap. It is assumed that the Federal Medical Assembly is a technically competent institution. Regarding to all dynamics of scientific and technological developments the legislature is not able to act and enact a law like the Federal Medical Assembly is capable to do. To unable them the legislature adopt legitimacy bases in laws. On these grounds the Federal Medical Assembly has the right to pass rules and standards in the form of a regulation. From a medical perspective it’s understandable, but the regulation also considers „the public debate on the opportunities, legitimacy and ethical boundaries, the social values convert the family, marriage and partnership, and the criteria of medical ethics“ (Preamble of the Directive). That especially includes the legal status (standesrechtlichen Voraussetzungen): the method of artificial insemination is limited to

– married (heterosexual) couples

– unmarried women in long-term relationships, if the man, who begets the child legally accepts the fatherhood

Quite clearly excluded from this are „women, who live in a partnership or same-sex partnership“ (3.1.1. of the regulation). The argument is that the stable relationship is missing in any other kind of relationship according to the Federal Medical Assembly. They also refer to the legal requirements as an overall picture, while creating a regulation and point out the Embryo Protection Act. This is the only law that effectively criminalizes something.

It includes the forms of extracorporeal fertilization and subsequent transfer of the resulting embryo into the body of the mother. Examples of this are the ovum donation, embryo transplantation and the surrogate and surrogate motherhood, but also constitutional provisions such as the right to life of embryos, self-determination rights of couples, health, child, etc. I don’t start with Article 6 and 3 of the German Constitution at this point – but most of the problems always bring us back to basic constitutional thoughts.

As I’ve already told you, all these conduct rules are regulations, but they are not directly binding like a normal legal norm. Only the intention of the German Medical Assembly doesn’t give the regulation and its contained recommendations and guidelines the significance of a binding legal norm. The regulations are definitions of their own medial action rules, which appears only as a conduct rule addressed to the professionals. Violations, however, are purely of a conduct rules nature.

Having all these annoying facts in mind, my hope is that the legislature starts to act itself, because then no more regulations of the Federal Medical Assembly are needed. Or that they create a proper legal framework in which the comprehensive equal treatment is guaranteed, because the Federal Medical Assembly acts on the ground of legal requirements and constitutional provisions as they say. The exclusion of lesbian women from the artificial insemination would then no longer be possible. As long as this has not occurred, the only way for lesbian couples to become pregnant is to travel abroad or to find a doctor in Germany, who is really brave. In Germany, around a million children live with homosexual parents (indication from 2009). Estimates show, however, that the actual number is even higher. It is a pity that the actual number is not visible. Only visibility brings that legal gap into legislatures mind and shows them that legal action is needed.

Thus, we have the field of reproductive medicine as an example of discrimination that is still taking place. There is still a long way to go until a full recognition of the lesbian partner and parenthood, and the freedom of autonomous life, including the decision on their own offspring and also the right to reproduction will really be accepted and guaranteed.

posted on eurOut on May 7, 2009

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