In the cases of three couples who carried risks for congenital illness, the Berlin-based doctor selected embryos during in vitro fertilisation (IVF) treatment that were free of defective genes and implanted them into the women. Meanwhile he let other affected embryos die.
The legality of this practice is uncertain, prompting the doctor to voluntarily approach the Federal Court to have his case tested in the hope of gaining legal clarity.
Elements of the controversial practice known as “pre-implantation diagnostics” are permitted in some countries such as Britain, but remain murky in Germany. The complex debate has been riddled with provocative terms such as “designer babies” amid fears that children could be made to measure according to the desires of their parents.
A Berlin court cleared the doctor in May 2009 of breaching embryo protection laws, but the Berlin state prosecutor appealed the verdict.
Germany’s embryo protection law stipulates jail sentences of up to three years for anyone who uses an embryo “generated outside the body” for “a purpose not aimed at its preservation.”
The Berlin court ruled that the wording of the embryo protection law did not prohibit pre-implantation diagnostics.
Fertility doctors are looking to the federal court case for reassurance.
“We are hoping very much that the Berlin acquittal is upheld by the federal court,” said Jan-Steffen Krüssel, chairman of the German Society for Reproductive Medicine.
Pre-implantation diagnostics could be used by several hundred affected couples a year if legal certainty to perform the procedure were given by a court, experts estimate.
Critics fear the practice would become a slippery slope, with couples using the diagnostic techniques not just to avoid hereditary illness but to choose other characteristics such as the sex of their baby.
But Krüssel said there was no difference between pre-implantation diagnostics and testing during pregnancy. Tests to detect illnesses in an embryo in the womb are permitted in Germany, and a termination is then allowed in the case of a genetic condition such as Down Syndrome.