Regulating Dangerous Futures: The German Embryo Protection Act of 1990 - Legislation in Risk Society
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| DOI | 10.1177/096466390000900202 |
| Author | Charlotte Augst |
| Subject Matter | Articles |
REGULATING DANGEROUS
FUTURES: THE GERMAN
EMBRYO PROTECTION ACT OF
1990 – LEGISLATION IN RISK
SOCIETY
CHARLOTTE AUGST
Queen Mary and Westfield College, London, UK
ABSTRACT
This article summarises the outcome of a research project which analyses the legis-
lative debates about the German Embryonenschutzgesetz (Embryo Protection Act) in
1990. From 1988 to 1990 the German Parliament discussed legislation for the prac-
tices of assisted conception and embryo research. The term ‘risk’ is central to the dis-
course. For Ulrich Beck (1986) this emphasis on risk is a sign of the reflexivity which
contemporary western societies have reached.
This article reads back into the risk discourse the values hidden in risk terminol-
ogy: they are identified as fears about modernisation processes. The focus on risk in
this article allows observation of late modernity’s unease about its own potential and
a growing ambiguity about modern ideas of progress and control (Bauman, 1991).
This ambiguity also becomes apparent in the strategies of policing which the German
legislature offers as solutions to the perceived risks: different legislative strategies are
developed to tackle the contradictory risk scenarios. These different strategies of
policing are understood as the construction of ‘places of safety’ in the face of identi-
fied dangers: the ‘traditional family’, the ‘good doctor’, ‘professional’ judgement.
Defining those boundaries allows the German legislature to juggle contradictory
agendas. This explains the inconsistent and fragmented nature of the Embryo Pro-
tection Act 1990.
SOCIAL &LEGAL STUDIES 0964 6639 (200006) 9:2 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(2), 205–226; 012635
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If only we could believe in capricious demons and do exorcisms it might be
easier. (Douglas, 1992: 17)
INTRODUCTION: THE LEGAL PROVISIONS THEMSELVES – AN
OVERVIEW
THIS ARTICLE INVESTIGATES the legal discourses that led to the
German Embryonenschutzgesetz (Embryo Protection Act, EPA), the
German ‘equivalent’ legislation to the British Human Fertilisation and
Embryology Act (HFEA) of the same year, 1990. It is not the purpose of this
article to compare these laws. However, in order to clarify what is significant
about the EPA it is useful to briefly contrast its provisions with the regu-
latory framework in Great Britain. The German Act is a piece of criminal law.
It is held up as being one of the strictest regulations of the area in the world.
It criminalises (apart from sperm donation) every form of gamete or embryo
transfer and surrogacy, whether commercial1or not. Treatments are only
available to married couples. Embryo research is generally prohibited. Apart
from criminal prohibitions the Act does not include any regulations or super-
vision for the activities that are allowed. This control is entirely left to the
medical profession and its regulatory bodies (Bundesärztekammer, BÄK). It
will be argued in this article that these two ‘layers’ of regulation lead to a
curious tension between, on the one hand, the visible strictness of the law
itself and, in contrast, a lack of legislative control of the actual practices. The
British legislators chose a different strategy to regulate new reproductive
technologies. The HFEA does not prohibit split parenthood and surrogacy.
Access to treatment is theoretically possible for unmarried women, although
the infamous and much-debated section 13(5) of the HFEA demands that ‘the
child’s need for a father’ be taken into account (on this section and more
generally on heterosexist notions of motherhood see: Stanworth, 1987;
Douglas and Lowe, 1992; Thomas, 1993; Millns, 1995 and Steinberg, 1997).
Embryo research is allowed for the first 14 days (see, on the controversy
about embryo research, Mulkay, 1997). The British legislature, however,
created the Human Fertilisation and Embryology Authority to administer
and supervise all the ‘allowed’ practices. The focus of British legislation cer-
tainly is not criminalisation, but regulation, despite the fact that some crim-
inal law provisions are included in the Act (see Steinberg, 1997: 139).
The peculiar German combination of strict criminal prohibitions, on the
one hand, and a lack of control and regulation of anything that is allowed, on
the other, was not uncontested in the parliamentary debates. The law reflects
the government position (the Conservative and the Liberal Party forming a
coalition at this point).2The Green Party argued along the lines of a radical
feminist perspective, informed by the analysis of, among others, FINNRAGE
(a women’s network against new reproductive technologies). The Greens
accordingly demanded the prohibition of any use of reproductive technolo-
gies. They were most radically opposed to any ‘eugenic’ practices (screening
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