The Legal and Ethical Status of the Human Embryo

Full Text

Preliminay remarks

The contribution does not simply aim at presenting a survey of positive statutes concerning and regulating the legal status of the human embryo in a particular legal order. Rather, it tries to clarify that status according to basic principles of law. Still, it will demonstrate certain fundamental legal difficulties by referring to the specific legal situation in Germany. The majority of jurists there holds that the domestic law protects human embryos by affording every single embryo a constitutional status, i.e. the right to life and human dignity. Hence, our analysis will distinguish two different levels of legal laws: the constitutional, and the ordinary legal statute level.

Positive law

The analysis of the ordinary statute law in Germany shows an unmistakable prohibition of any destruction of embryos for research purposes, including PGD, by the Embryo Protection Act of 1991. Оn the other hand the plain text of the Grundgesetz itself provides no such prohibition. Whether or not the embryo is included in the wordings of Articles 1 (Inviolability of Human Dignity) and 2 (Right to Life) cannot cogently be decided by common means of jurisprudential interpretation. The only possible constitutional sources for such an inclusion, therefore, are two rulings of our Constitutional Court (Bundesverfassungsgericht) on abortion. The court emphasizes a constitutional right to life and human dignity for embryos in both decisions. But at the same time it produces a self-destructive contradiction in the latter ruling (1993), which leads to the situation that selective abortions up to three months gestational time must uniformly be treated as legal. Due to fundamental requirements of the existence and validity of laws, this renders abortions legal, regardless of how they are labelled by anyone, including the Bundesverfassungsgericht. And this fact, in turn, is not compatible with a constitutional right to life of embryos.

So the legal analysis concerning embryo protection in Germany renders a constitutional tabula rasa, and, on the other hand, a clear prohibition on the statute level. Since the latter is subject to normal legal changes, the question arises whether it should be reversed or not.

Legal ethics

Concerning the embryo itself, four arguments are usually put forward to establish a right to life of embryos: the species, the continuity, the potentiality, and the identity argument. None

of them is valid to reach the projected normative goal. This claim can be backed by differentiating three fundamental sources of ethical duties and of corresponding ethical rights:

• the prohibition of harming;
• the duty of solidarity;
• the protection of our basic normative rules and principles.

The protection of human embryos demanded by basic legal principles does not belong in the realm of the prohibition of harming. Exactly for this reason there are no convincing legal- ethical arguments for according them a constitutional right to life and dignity. This does not mean that human embryos may be treated as mere objects; in fact, they must not. But their protection is a prima facie duty of solidarity, amounting to a duty of granting them of a chance to development and birth. This obligation is amplified by specific considerations concerning the protection of our fundamental normative institutions. But it can, nevertheless, be outweighed by conflicting obligations that society has towards born human persons.

About the authors

R. Merkel

Author for correspondence.
Email: redaktor@celltranspl.ru

Faculty of Law

References

Supplementary files