VI. GERMAN-SPEAKING COUNTRIES AND SWITZERLAND

Interest in bioethics in the German-speaking countries (Germany, Austria, and Switzerland) originated, as it did elsewhere, with medical-ethics questions related to both modern biotechnological potential and a growing ethical pluralism. These factors not only induced physicians to debate these issues, they were part of the reason for a "rehabilitation of practical philosophy" among a number of German academic philosophers and theologians that included a renewed interest in moral, social, and political problems.

In several respects, bioethics in Germany, Switzerland, and Austria differs from that in the United States or other European countries. First, as a major, collective, and socially visible effort, it developed relatively late—in the 1980s.

Some explanations for this are the lack of civil rights movements that would have endorsed issues of patients' rights; a widespread and deeply rooted medical paternalism; good, uniform access to medical care (and thus little need for allocation debates); a different philosophical tradition; and, in Germany, a severely disturbed moral self-assurance due to the relatively recent experiences of Nazi Germany's indescribable immoralities.

Second, there are many theological voices in German bioethics. In the German world, theology is given a legitimate academic presence within universities, where it enjoys the same juridical status as all other disciplines. It also possesses relative independence from religious institutions. Third, German law is solely statutory in nature and is not linked to case law, as it is in the American judicial system. Hence, going to court is a far less common way to trigger public discussion on difficult bioethics cases. In Switzerland, plebiscites (direct voting by the population on an issue) are an instrument of legislative decision making. In addition, legal authority resides partly with the Bund (federation) and partly with the 26 different cantons (states), which show remarkable legal differences in handling some bioethics problems.

Fourth, Germans place great importance on the study of the history of medicine and medical anthropology, the philosophical clarification of fundamental medical categories. Fifth, Germany labors under the historical weight of the Nazi regime's deadly medical experimentation, eugenics, and euthanasia—and of the concomitant moral degradation of many physicians. Thus, public mistrust of bioethics "experts" seems to be comparatively deep and widespread.

Not only does the Nazi specter affect the discussion of bioethics in Germany, but it is seen by many to have a direct connection to a number of issues discussed in contemporary bioethics. Concern is heightened by the fact that Nazi experimentation occurred despite the existence of guidelines for therapeutic and scientific research on human subjects that prohibited such treatment. These guidelines, thought to be the first of their kind, were originally published as a Circular of the Reich Minister of the Interior on February 28, 1931, and remained in force until 1945 (Sass, 1993). Several groups and movements have taken the position that preimplantation diagnosis, selective abortion, euthanasia, and gene therapy are not only immoral, but represent a continuation of Nazi ideology.

Philosophical Bioethics in Germany

The philosophical clarification of medicine's role, and of its fundamental categories (e.g., pathology, illness, healing) in Germany still has an influential intramedical tradition as medical anthropology (Weizsäcker). German medicine has long cultivated historical study, and the many institutes devoted to medical history increasingly view part of their work as preparatory to or incorporating moral reflection on medicine. Whereas medical ethics has traditionally focused primarily on aspects of the physician–patient relationship(e.g., truth-telling, confidentiality, humaneness), its spectrum has long since been broadened to cover all issues addressed by Anglo-American "bioethics." The latter, however, is opposed by many—be it merely as a label, as the writing of those who call themselves bioethicists, or as a discipline in general. Thus (in contrast to medical ethics), "bioethics" has frequently been understood as an ideological and uncritical defense of biotechnological progress or profit—or at least with a suspected (i.e., "analytical") style of philosophy.

German philosophers have thus been late to join the contemporary Anglo-American debate on any issue in applied ethics. Analytical philosophers had to leave the country under the Nazi regime—and continental philosophers of the period were rarely attracted by either utilitarianism or pragmatism, which are among the dominant theories in contemporary Anglo-Saxon ethics debates. Immanuel Kant (1724–1804), with his rejection of material ethical values and his predominant interest in a metaphysico-rational justification of ethics, has certainly been the major influence for those opposed to these theories.

At the beginning of the twenty-first century, this gap seems to have closed. Meanwhile, quite a number of philosophers consider bioethics a serious aspect of their own academic work. In 2003 the German book market still lacked a basic comprehensive textbook covering both in-depth theory and the whole spectrum of ethical problems in healthcare, which are covered by a number of influential Anglo-American examples. However, introductory anthologies (e.g., Wiesing; Düwell and Steigleder) and shorter monographs (e.g., Höffe; Schramme) have enriched the debate and provided educational material. Comparable to the Anglo-American context, bioethics has—not undisputedy—also become part of many public discussions and debates, with philosophers increasingly serving on ethics committees and presenting their views in newspapers and on talk shows. Simultaneously, this "expertise" (and its limits and dangers) has itself become subject of critical methodological reflection (Gesang; Ach and Runtenberg), again paralleling developments elswhere.

Institutions and Teaching

Paralleling the belated onset of bioethical debates in German-speaking countries, the development of institutions focused on the study of bioethics has also been comparatively slow. However, a number of chairs, institutes, and centers devoted to this field have been established, most of them university based. Many of them offer optional courses, but forthcoming revisons of federal regulations require medical ethics to be part of the medical curriculum. They are also involved, to various degrees, in consultation and research, with some publishing their own series on specific issues in bioethics and some drawing fellows and postgraduate students from different disciplines into collaboration and common discourse on ethical aspects of medicine, science, and the law. Since the 1980s, a pioneering role can be attributed to the Institut für Geschichte der Medizin (Institute for History of Medicine) at the University of Freiburg in Breisgau—now part of the Zentrum für Ethik und Recht in der Medizin (Center for Ethics and Law in Medicine); the Zentrum für Ethik in den Wissenschaften (Center for Ethics in the Sciences and Humanities) at the University of Tübingen; and the university-based Zentrum für Medizinische Ethik Bochum (Bochum Institute for Medical Ethics). Since the 1980s the Forschungsinstitut für Philosophie (Research Institute for Philosophy) in Hannover, founded with financing from—and under the auspices of—the Roman Catholic Church, has focused on issues at the intersection of religion and philosophy in the Catholic tradition of philosophical thought, offering a broad spectrum of activities in ethical research and education.

Among the more or less recently founded or reorganized bioethics institutions are the Institut für Wissenschaft und Ethik at the University of Bonn, the Interdisziplinäres Zentrum für Ethik at the University of Frankfurt/Oder; the Ethikzentrum at the University of Jena; the independent Institut Mensch, Ethik und Wissenschaft in Berlin (founded by various institutions that advocate for the rights of the disabled); and the Institute für Ethik, Geschichte (und Theorie) der Medizin at the Universities of Erlangen, Münster, and Göttingen. The institute in Göttingen is, moreover, linked to office of the interdisciplinary Akademie für Ethik in der Medizin (see below) as well as to the Information and Documentation Center for Medical Ethics (IDEM), which is part of Euroethics, a European database, and provides a database for German literature in the field. The institute in Bonn is in charge of the German Reference Center for Bioethics Literature (DRZE), which is a repository for both national and international literature.

In Switzerland, several institutes are active in the study and teaching of bioethics: most notably the Institut für Sozialethik and the Arbeitsund Forschungsstelle für Ethik (founded in 1989), both at the University of Zurich; the Interdisziplinäres Institut für Ethik und Menschenrechte at the University of Fribourg; the Centre Lémanique d' Ethique in Lausanne/GENF; as well as the Institut für AngewandteEthik und Medizinethik (IAEME; founded in 2000) and the unit of ethics in biosciences both at the University of Basel.

In Austria, the university-based centers in the field are the Dokumentationsstelle für Ethik in Vienna; the Institut für Medizinische, Anthropologie, und Bioethik, also in Vienna; and the Koordinationsstelle für Grundund Grenzfragen der Medizin in Salzburg, In addition, the Wissenschaftliche Landesakademie für Niederösterreich (Scientific State's Academy for Lower Austria) has established an institute for the research, teaching, and study of bioethics. But, as in Germany and Switzerland, bioethics has become an expanding discipline, and is by no means restricted to established centers, but pursued by a growing number of academics in various disciplines and settings.

The first German-language journal for medical ethics, Arzt und Christ (Physician and Christian), was founded in Austria in 1955. Since 1993 the journal has been called Zeitschrift für medizinische Ethik (Journal of Medical Ethics) and is published in Bonn, Germany.

Professional and Government-Appointed Bodies

Common to all German-speaking countries is the existence of a governing body regulating the contact of healthcare professionals and possibly administering sanctions against those who disobey to their rules. Characteristically, these institutions focus on determining professional ethics and they have widely recognized authority in judging new medical practices.

In Switzerland, the Schweizerische Akademie der medizinischen Wissenschaften (Swiss Academy of Medical Sciences) is a foundation comprised of all Swiss medical schools and physicians' associations. Its Central Ethics Commission prepares guidelines on specific issues of medical or research practice that are considered ethically problematic, such as policies for new reproductive technologies for withdrawing life-supporting treatment. In addition, the fourteen-member commission serves as a permanent ethics counseling body for physicians and the public.

Similarly, in Germany, the Federal Chamber of Physicians (Bundesärtzekammer, membership in which is obligatory for German physicians) has established an Ethics Advisory Board to its Scientific Council to issue ethics guidelines for intraprofessional self-regulation and to serve as a counseling body. In areas of conduct that lack legal regulation, this type of binding professional self-legislation functions somewhat as a legal substitute for such regulations. Other important bodies are known as Gesellschaften or Akademien (societies of experts). They aim at promoting scientific debates and research among their members and the public. The body for medical ethics in Germany is the Akademie für Ethik in der Medizin (Academy for Medical Ethics). Founded in 1986, it has in 2003 an interdisciplinary membership of approximately 450 members, most of whom are German. The Akademie receives a mix of public and private funding and provides a forum for research (working groups on specific topics), for expert and public debate, and for teaching medical ethics. Since 1989 it has published the second German language journal on medical ethics, Ethik in der Medizin, and in 1993 it established the first German bioethics literature database, IDEM. Another professional body (of both law and medicine) worth mentioning is the Deutsche Gesellschaft für Medizinrecht (German Society for Medical Law), which formulated recommendations on the treatment of severely disabled newborns (the Einbecker Recommendations). In Switzerland, the most important professional body is the Schweizerische Gesellschaft für biomedizinische Ethik (Swiss Society for Biomedical Ethics).

Finally, governments or parliaments in these countries have increasingly appointed working groups or expert commissions to issue advisory reports on a variety of bioethical and legal issues. The first to be published in Germany (by the Bundesminister für Forschung und Technologie) was the 1985 report of the Benda Commission on assisted fertilization, genome analysis, and gene therapy. In Switzerland, the Expertenkommission Humangenetik und Reproduktionsmedizin issued the Amstad Report, dealing with the same subjects, in 1988. These initial efforts were followed by number of similar working groups and expert commissions dealing with a variety of topics. They contributed to the increasing gain in public attention to problems in bioethic, although the ethical analyses contained in their reports are certainly less in-depth, and also less balanced, than, for example, the reports of the various President's Commissions in the United States. Participants with a background in philosophy served on these bodies only in rare instances.

The three German-speaking countries created national ethics councils later then almost any other European country. In 2001 each of them established such a body: in Germany the Nationale Ethikrat was established (in fruitful competition with the nonpermanent Commission for Law and Ethics of modern medicine); in Switzerland, which already had a national ethics commission for questions of nonhuman genetic technology, the Bundesrat appointed a Nationale Ethikkommission im Bereich der Humanmedizin (Swiss National Advisory Commission on Bioethical Ethics); and in Austria, the 18-member Bioethik-Kommission was established at the Federal Chancellery. All three bodies exercise an independent advisory function and are supposed to stimulate public debates in matters of bioethics. They have already come up with a couple of published recommendations.

Ethics Committees for Human Experimentation

Local Ethikkommissionen (ethics committees), functioning almost exclusively as review boards for medical experiments on human subjects, exist in Austria, Germany, and Switzerland. Only in very few hospitals, committees have also been established to consider different ethics questions such as treatment decisions for individual patients or the development of institutional ethics guidelines. As in other Western countries, the institutionalization of review boards for medical research on humans occurred in response to the Nuremberg Trials of Nazi physicians, in accord with the 1964 Declaration of Helsinki and its subsequent revisions.

In Switzerland, the pioneering 1970 guidelines on research involving human subjects (revised in 1989 and 1997) issued by the Swiss Academy of Medical Sciences (Schweizerische Akademie der Wissenschaften, or SAMW) required the establishment of ethics committees at hospitals and research institutes to make certain that proposed projects were important, well designed, and of acceptable risk—and that subjects were insured and had given informed consent. The participation of nurses on these committees was required, leaving other details to institutional discretion. Since 1993 experimentation on human subjects is covered by federal law. The Federal Act on drugs and medical products (in force since 2000) requires all research on human subjects—be it publicly or privately funded—to get prior (ethical) approval by a research committee. The about 25 existing such cantonal committees are to have members of both sexes, among them nurses, lay persons, and at least three nonmedical members with experience in social, ethical, or juridical matters.

In Germany (see Toellner; Wiesing, 2002), the introduction of ethics committees was not generally recommended until 1979, when it was endorsed by both the German Federal Chamber of Physicians (Bundesarztekammer) for the chambers on state and federal levels and by the Federal Association of Medical Schools for the medical schools. In 1983 the Working group of Medical Ethics Committees (Arbeitskreis Medizinischer Ethik-Kommissionen) was founded. It is comprised of all ethics committees at the state physicians' chambers and the medical faculties. The workgroup meets annually to share experiences, promote standardization, and revise its procedural principles.

In 1985 the Bundesärztekammer turned the requests for ethics-committee review into an obligatory standard of professional practice. And finally, the German Drug Law ACT (Arzneimittelgesetz,) of 1995—and under revision in 2003—is making it obligatory for any research on human subjects, their tissues or person-related data, to get approval from an ethics committee. For publicly funded research in 2003, there were 17 committees at the state chambers of physicians (Landesärztekammern), and 38 at the universitybased departments of medicine. Most committees have between seven and nine members (plus substitutes) of a—legally required—interdisciplinary background. Local bodies possess some discretional freedom on how to interpret this requirement; only a minority of them include nurses or lay persons. Both public and professional trust and acceptance in those commissions' work seems to increase steadily, although a number of crucial issues are yet unsolved, for instance, regarding the missing evaluation and quality assessment procedures of the committees' work; or the lack of oversight, particularly of commercial or "free" (not institution-affiliated) committees. Other issues under debate are the coordination of different ethics committees in multicenter research, or possibilities to monitor ongoing research compliance to ethical standards.

In Austria, research ethics committees have been legally required since 1988 for the medical faculties and research hospitals. These prescriptions were revised in detail in 1993, and now require that the states issue legal regulations, according to which every ethics committee must include: (1) women; (2) at least one independent person and one physician with particular expertise in the research at stake; (3) at least one representative of the hospital's chaplain (or somebody else with ethical expertise related to patients, staff, and legal services; and (4) a pharmacist.

Specific Ethical Issues

EUTHANASIA. The Guidelines on Assistance in Dying of the Swiss Academy of Medical Sciences (issued in 1976, revised in 1981 and 1995) emphasize a patient's right to turn down any medical treatment. They further permit withholding treatment for irreversibly terminal patients, as well as for patients with a loss of consciousness considered irreversible. Dispensable "treatment" in such cases may explicitly include respiration and artificial nutrition. Decisions must include substituted judgments made with the help of the patient's next of kin, and they must consider the patient's best interests. As of 1995, living wills must be followed. Active voluntary euthanasia, however, is illegal under the Swiss Penal Code. Assistance in patient suicide, though not illegal, is not considered a proper activity for physicians. However, it is not explicitly and strictly said to be unacceptable under every circumstance. Assistance in suicide for competent terminally ill patients is provided by two Swiss societies, Exit and Dignitas, the latter being open also for non-Swiss patients. A highly controversial "suicide tourism" has thus developed, with 55 instances of assisted suicide by non-Swiss individuals in 2002.

The German Federal Chamber of Physicians modeled its 1979 guidelines on "assistance in dying" almost verbatim on the Swiss guidelines (Baumann). Remarkably, however, two points were left out: the explicit permission to withhold or withdraw respiration and artificial nutrition in the irreversibly dying patient, and the explicit permission to forgo treatment in patients with an irreversible loss of consciousness. Moreover, these early German guidelines consider living wills to be merely a nonbinding piece of evidence. In a 1993 update of these guidelines, this last point was explicitly reaffirmed. The 1999 revision of the guidelines, however, exhibit substantial changes. Advance directives (which have since become subject to separate guidelines) are granted a binding status, as long as they are precise and relevant. Furthermore, artificial nutrition, though part of the commonly indispensable basic support, can legitimately be withdrawn from an irreversibly terminal patient, as long as he or she is kept comfortable and neither hungry nor thirsty. Indispensibility of basic care and treatment, with the explicit inclusion of artificial nutrition, is, however, reconfirmed for patients with an irreversible loss of consciousness. Also reconfirmed is the impermissibility of active voluntary euthanasia.

The German Roman Catholic Conference of Bishops and the Protestant Church have repeatedly and strongly argued against active euthanasia, while emphasizing the need—and Christian obligation—to care in a humane and Christian way for the suffering and dying. A hospice movement that provides palliative care for the dying is seen by many as an appropriate way both to fulfill the obligation to care for the terminally ill and to eliminate the very reasons patients ask for voluntary euthanasia. In addition, any use of the term euthanasia in Germany conjures up vivid images of the use of the term by the Nazis as they carried out their goal of exterminating millions of fellow human beings who were deemed to be of "inferior" quality. The deeply emotional nature of this historical association explains current objections by many Germans to any discussion of euthanasia. The media and public culture are so aware of Nazi cruelties that lectures by Peter Singer and Helga Kuhse—Australian bioethicists who support both voluntary euthanasia and the permissibility of passive as well as active euthanasia (withholding treatment as well as directly killing) for severely disabled neonates on parental request—have been prohibited or protested in Germany and Austria (Schöne-Seifert). In the aftermath of this "Singer affair" (starting in 1989), organizations of disabled people and other political and interest groups have vehemently argued that those in favor of euthanasia for severely disabled newborns are making an indirect judgment about the worth of a life and are in danger of creating a climate in which elimination of the unfit or discrimination toward the sick, feeble, and disabled will again be accepted. These objections have also been raised in debates about selective abortion, creating a rather widespread antibioethics climate in both Germany and Austria.

In Switzerland, withdrawing treatment for most severely disabled newborns is considered morally permissible and is narrowly specified as such in the Swiss guidelines. The German Society for Medical Law had issued rather similar recommendations (the so-called Einbecker Empfehlungen [Recommendations of Einbeck]) in 1986. At the time, the Society considered it morally permissible to let newborns die when they either suffer from most severe mental disabilities or can only be kept alive by permanent intensive care. After the Singer affair, these recommendations were revised (in 1992), and forgoing treatment is now restricted to newborns with irreversible medical problems that will lead to death within a short period of time.

Legalized active euthanasia at the request of terminally ill patients has been advocated by some German voices. For example, the Deutsche Gesellschaft für Humanes Sterben (German Society for Humanely Dying, or DGHS), founded in 1980, advocates for respect for the dying patient's autonomy. This lay organization, which does not enjoy much support in the medical or legal communities, also provides its members with forms for living wills, and in the past it has provided assistance in suicide (because suicide is not a criminal offense, assisting it is not illegal either). Physicians, however, are seen by law to stand under specific professional obligations (Garantenpflichten), which some courts—in contrast to the view dominant in the legal literature—have interpreted to include suicide intervention. Hence, there is an unresolved legal tension that makes jurisdiction on physicians' assistance (and consequent nonintervention) in suicide unpredictable. The credibility of DGHS was severely shaken in early 1993 when its founder and president, H. H. Atrott, was arrested for selling cyanide capsules—moreover at inflated prices.

In 1986, the Alternativentwurf eines Gesetzes über Sterbehilfe (Alternative Draft of a Law for Assistance in Dying) was published by a number of reputable experts in medicine and law (Baumann). Among its suggestions was one to waive prosecution of euthanasia (though illegal) when it is persistently requested, and if the euthanized patient was competent and suffering from terminal illness. However, the draft never succeeded, due to lack of sympathy for it from the Federal Chamber of Physicians and the German Legal Association.

Advance directives (see Meran et al.), be they in the form of living wills or of durable powers of attorney, have slowly started to play a role in medical decision making in all three German-speaking countries. Although the 1992 Care ACT (Betreuungsgesetz) in Germany in principle provides for both instruments, and although various forms for living wills are publicly available, the legal status of advance directives is disputed and considered uncertain. This situation discourages both its acceptance by the medical profession and wider use by patients. In 2003 a critically debated Supreme Court decision upheld a ruling that decisions to stop life-saving treatment cannot be validly made by a patient's advocate without confirmation of the courts. Critics consider this position both nonrealizable and contrary to a patient's right to self-determination. In the same decision, however, advance directives, at least for the terminal phase of disease, were acknowledged as expressions of a patient's autonomy in former days and as legally binding.

In Austria, the overall situation is very similar to that in Switzerland and Germany: Active euthanasia is illegal under the national Penal Code; withdrawing treatment is not, by either law or policies, regulated in any detail; and advance directives seem to be slowly gaining in use and impact.

ABORTION. With the 1990 reunification of the German nation, most laws and regulations of the former Federal Republic of Germany (West Germany) were applied to the citizens of the former German Democratic Republic (East Germany). However, there were very different models of legal abortion in the penal codes of the two Germanys, which resulted in a heated debate. In the West, a 1974 law permitted pregnant women to choose abortion until the end of the first trimester. Based on a charge of nonprotection of the rights of the unborn, the constitutionality of this law was challenged in 1975. The resulting interpretation of the constitution (Grundgesetz) by the Federal Constitutional Court (Bundesverfassungsgericht) held that human dignity (Menschenwürde)—a conceptually loose term that is used by both sides of the abortion debate to support their position—is constitutionally protected from the moment of conception. It enforced an indication model, permitting legal abortion until the end of the first trimester only if a physician certified that certain social or medical indications were present. Under this model, the physician was the ultimate moral agent and an acknowledged right to life of the unborn was to be balanced against medical or social hardship. Generous interpretation of these criteria often led to a de facto policy of abortion on demand in the first trimester, but with different standards and variability in enforcement in the various states of the Federal Republic. In the German Democratic Republic, a term model for legal abortions operated since 1972, wherein abortion was allowed until the end of the first trimester and was cost-free.

In the new Germany, a heated public debate (though involving little philosophical analysis) took place on the underlying theological, moral, and political positions motivating the clashing views on abortion. In 1992 the federal parliament approved a compromise law under which abortion would be legal in the first trimester (and paid for by health insurance) as long as the woman had a consultation session prior to abortion. Mandatory counseling and education were intended as an additional step to strengthen fetal protection (a goal that was emphasized almost unanimously) and include informing a pregnant woman about existing supportive social, welfare, and employment programs, as well as kindergarten settings for the child, that might enable her to choose to continue her pregnancy.

However, conservative parliamentarians and the Roman Catholic Church petitioned the Bundesverfassungsgericht to declare the law unconstitutional. The German Supreme Court did just that in May 1993, stating that the counseling sessions did not go far enough in protecting fetal human life, as required by the (formerly West) German Constitution. The Court argued that the constitutional rights of a woman (to physical integrity, human dignity, right of personality) do not go so far as to allow her to claim a fundamentally protected legal right to kill an unborn child by means of abortion; that abortions at any point during a pregnancy are fundamentally wrong, and thus illegal; and that the state's duty to protect the unborn also includes maintaining and raising the public's consciousness of the unborn child's legal right of protection. However, the Court held that a future abortion law would be considered constitutional even if it abstained from prosecution of illegal first-trimester abortions that were performed at the pregnant woman's request, as long as she has undergone prior mandatory and explicit pro-life counseling. A new abortion law, which came into force in 1995, includes this requirement.

Both public and expert reactions to this legal reform are heavily split. Where some emphasize its being a socially integrative compromise, conservative critics deplore what they consider a violation of the embryo's human dignity, while others object to both the Supreme Court's and the legislation's blatant inconsistencies. For them, accrediting a full-blown right to life and dignity to the early embryo is incompatible with de facto permission of first trimester abortion on demand and the state's court-mandated provision of abortion facilities (Merkel). The required pro-life counseling is seen as a violation of women's right and competency to self-determination (Kuhlmann), and the preemption of prosecution for illegal abortions is considered to undermine the public's trust in the law.

In Switzerland (where women first began to acquire the political right to vote only in 1971), abortions had been permitted only for serious medical indications or in case of grave emergency (commonly interpreted to include rape and embryopathy). In the 1970s, opinion polls suggested that a majority of the Swiss people would opt for a liberalization of abortion law. However, a plebiscite in 1977 went narrowly against abortion on demand in the first trimester of pregnancy (with a majority of French-speaking and predominantly Protestant cantons [states] in favor of liberalization, and German-speaking and predominantly Catholic cantons against). A repetition of the plebiscite in June of 2002, however, saw 72 percent of the votes being in favor of first trimester abortions on demand, and they are now allowed, with only a prior comprehensive consultation with the physician who is going to perform the intervention.

In predominantly (85%) Roman Catholic Austria, first-trimester abortion on demand has nevertheless been legally permitted since 1975. Costs of medically indicated abortions are covered by insurance, while those resulting from abortions performed for nonmedical reasons must be paid for by the women themselves. A pro-life referendum initiated the year before the introduction of this law won only 18 percent of the vote, and none of the three major political parties supported the initiative.

NEW REPRODUCTIVE TECHNOLOGIES AND EMBRYO TESTING. A great deal of the public debate in German, Austrian, and Swiss bioethics continues to focus on reproductive issues. All three countries criminalize egg donation for reproductive purposes (and thus surrogate motherhood), the fertilization of more (3 eggs maximum) than are to be transferred (thereby theoretically preventing the existence of "spare" embryos), as well as any research on or manipulation of an embryo not in its own therapeutic intererest. Genetic manipulation on the germline cells (those from which gametes are derived) is prohibited.

In Germany, the Benda Report of 1985 recommended that a future reproduction law ban: (1) all forms of surrogate motherhood; (2) heterologous (with sperm other than a woman's spouse) in vitro fertilization (IVF) and assisted insemination by donor (AID), at least for single women; (3) research on embryos other than those that are purposefully left over from IVF; and (4) any genetic manipulation of germline cells. These measures were considered necessary to prevent violations of "human dignity." The first regulations, issued in 1985 by the Federal Chamber of Physicians, had the status of intraprofessional self-regulation. They were revised in 1988 and 1994, and now permit only homologous (using only the spouses' egg and sperm) IVF and GIFT (gamete-intra-fallopian-tube transfer), and only in married couples. Only somatic infertility is explicitly accepted as an indication for IVF, for example, and the restriction to homologity and marriage are justified by the well-being of the child-to-be. In accordance with the 1991 Embryo Protection Act, embryo donation and all forms of surrogate motherhood are prohibited (though, theoretically, unpaidfor donor sperm may be used in rare cases). However, no cases of AID have occurred since 1985, and issues of access to (heterologous) IVF—and its ramifications for family law—still await a long-planned reproductive medicine law.

In a second set of guidelines issued in 1985, the chamber prohibited the production of embryos for research and restricted embryo research to important questions of infertility treatment or embryo development—and to spare embryos less than 14 days old—after approval of the central commission. After heated public debates on the relevant meaning of human dignity and of reproductive autonomy, and on the permissibility of research even on spare embryos, the German Embryo Protection Act (Embryonenschutzgesetz) was introduced in 1991, setting unprecedented standards in terms of restrictivity. In summary, the law prohibits: (1) artificial insemination of an oocyte for any purpose other than a nonsurrogate pregnancy of the "possessing" woman, and (2) any kind of nontherapeutic manipulation or research on the embryo, even in case of spare embryos (whose occurrence is made unlikely by the first prohibition). In addition, (3) any single totipotent cell (an early embryonic cell from which a whole organism could still develop) is given the legal status of an embryo. Further restrictions rule out (4) reproductive egg donation and any form of surrogate motherhood, as well as (5) cloning or the creation of chimeras (organisms with a combination of human and animal genes). Violating these regulations can result in lengthy prison terms and monetary fines, but punishment applies only to third parties (i.e., physicians, researchers, and agencies), not to biological, gestational, or social mothers-to-be.

This law has been controversial, particularly in the light of the more recent options of "using" embryos for stem-cell research, which is clearly prohibited by this law. It has been praised by its proponents for its strict embryo protection, while critics claim it interferes with self-determination, responsible parenthood, and reproductive choice.

Preimplantation diagnosis (PID) is currently not practiced in Germany, but it is increasingly demanded by various people and groups. Initially, most legal experts considered PID implicitly prohibited by the Embryo Protection Act, though this view has been challenged by a growing number of experts. There is a broad consensus, however, that regulation of the issue is required before PID can be practiced. As can be witnessed in other countries, those strongly opposed to PID (and the involved selection of embryos) make several arguments. They consider the procedure to be: (1) a violation of the early embryo's dignity and right to life; (2) a form of, or at least an invitation to, unacceptable eugenics; and (3) discriminatory toward, or hurtful of, those disabled individuals who have been born with one of those diseases PID would select against. Those in favor of PID most commonly want it offered very restrictively to couples with a family history of severe hereditary disease. Not only do they question the plausibility of the above arguments, but they criticize what they consider an ethical double standard; that is, forbidding preimplantation diagnosis, while at the same time allowing elective abortion after prenatal diagnosis of the very same severe hereditary diseases (and even less severe ones) in significantly later stages of pregnancy.

Austria's Reproductive Medicine Act (Fortpflanzungsmedizingesetz) regulates both the use of new reproductive technologies and embryo protection. It was introduced in 1992 after long and heated debates, and it represents a political compromise between the Roman Catholic opposition to reproductive technologies on theological grounds and more liberal approaches that emphasize the benefits of new reproductive technologies to support individual reproductive freedom and choice. Both homologous and heterologous IVF or GIFT are permitted as infertility treatments for married couples or those in stable relationships, but embryo donation and all forms of surrogate motherhood are forbidden. Only freely donated sperm from living donors may be used, and, based on the concept of human dignity, a child conceived from donor sperm is permitted to know the identity of the biological father once he or she reaches maturity (records must be kept for thirty years). Issues of inheritance and other matters affecting IVF offspring are regulated elsewhere in the law. Preimplantation diagnostics, though not expressly mentioned, are considered forbidden and currently not practiced in Austria.

In Switzerland, the Swiss Academy for Medical Sciences (SAMW) issued guidelines on the use of new reproductive technologies in 1990. Homologous IVF in married or quasi-married couples, as well as IVF using anonymously donated sperm or eggs in married couples, are permitted as either infertility treatment or as a means to prevent transmission of a genetic disease. Embryo donation, all forms of surrogate motherhood, preimplantative sex selection, germline manipulation, and any research on embryos are all prohibited.

In 1992 the Swiss implemented Article 24, a constitutional amendment requiring federal regulation of embryo protection and of reproductive technologies according to the following restrictions: The manipulation of germline cells and embryos, the creation of chimeras, and the production of spare embryos are illegal; homologous and heterologous IVF are legal as an infertility treatment (allowing—like German and Austrian law, and in contrast to the SAMW guidelines—for later access to information about one's biological parent) or as a means to prevent transmission of a genetic disease; embryo donation and all forms of surrogate motherhood are illegal; but research on (the few available, see above) spare embryos is not explicitly ruled out. Since 2001 the federal Reproductive Medicine Act has been in force, prohibiting egg and embryo donation, the creation of surplus embryos, and the performance of PID. As in Austria and Germany, public opinion on these matters are heavily split.

EMBRYO RESEARCH AND CLONING. Since the late 1990s, embryo research is no longer an abstract ethical issue, but is being discussed with regard to stem-cell research with its promises of future therapeutic breakthroughs. In all three German-speaking countries, the creation of embryonic stem cells is prohibited by the above described laws. In 2001, both in Germany (by the Deutsche Forschungsgemeinschaft) and in Switzerland (by the Swiss National Fonds) the scientific communities questioned these prohibitions publicly and suggested that embryonic stem cells be imported from abroad, thus legally providing scientists with the tools to participate in the promising new research. Simultaneously, they and many others urged public debates and legal reforms that would allow Swiss and German scientists to use (deep-frozen) surplus embryos, the existence of which cannot completely be prevented even by the restrictive current laws.

In Switzerland, a research project on imported embryos began in 2001, while the issues were still subject to controversial public debates. In 2003 the country was awaiting a stem-cell research law, which will most probably permit the creation of stem cells from surplus embryos. The more general issues of embryo research will be handled in an additional future law regulating overall issues of research on human subjects.

In Germany, scientists have also started to work on imported stem-cell lines. Here, however, they waited for a clear legal basis, provided by a new stem-cell law implemented in the summer of 2002. While strictly prohibiting the destruction of early embryos, even for highly promising medical purposes, it nevertheless permits, under a number of restrictions, the importation of existing stem-cell lines. A majority of parliament members viewed this legislation as an acceptable compromise, whereas critics consider it to be another instance of ethical hypocrisy.

In Austria, no attempts have yet been made to legalize the importation of embryonic stem cells, and the whole matter of destructive embryo research is under debate.

Cloning, both for reproduction and for biomedical research, is one of the most recent bioethical issues dealt with in all three countries. Reproductive cloning by any method will certainly be ruled out by laws to come. Cloning for biomedical research purposes, on the other hand, has been rejected by a majority of experts and the public—though not unequivocally. Again, the moral status of (artificial) embryos, the moral claims of future patients, slippery-slope arguments, and the difficulties in handling the bioethical pluralism of modern societies will be prominent arguments in these discourses.

HUMAN GENETICS. The use of genetic testing techniques in Germany, Switzerland, and Austria is regulated quite strictly. Each of these countries has regulations regarding the use of genetic testing, the need for informed consent of the individuals involved, and the need to integrate genetic testing into a larger process of genetic counseling. The memory of eugenics experiments during the Third Reich inevitably generates negative emotions, especially in Germany, toward any medical intervention concerned with the prevention of hereditary disease. German reflection seems particularly concerned with the question of how far society and parents should go in accepting disabilities that can easily be discovered using prenatal diagnosis, while at the same time protecting the woman's right to decide whether or not to use prenatal diagnosis. Another major issue discussed in all three countries is the appropriate balance between people's autonomy (to know about a carrier status or genetic disease in themselves or their embryo, and to draw consequences they consider appropriate) and the protection of the same people from unwelcome or unbearable information, from unreasonable risk assessment, or from external sanctions upon their genetic status. There seems to be a strong public consensus for a ban on germline manipulation, whereas somatic gene therapy, although met with a much public suspicion, was applied for the first time in 1994 on somatic cells (cells other than those from eggs and sperm). The Federal Chamber of Physicians is currently at work on guidelines on somatic gene therapy.

The German Gene Technology Law of 1990 (revised in 1993) does not address questions of genetic testing or engineering in humans. Three commissions, one at the level of the federal parliament, and two composed of executives from state and federal governments have already issued recommendations for a law that would specifically regulate issues of genetic counseling and testing in embryos, neonates, carriers, high-risk persons, or at the workplace. For the time being, these issues are partly regulated intraprofessionally. Guidelines issued in 1991 by the German Federal Chamber of Physicians urge that genetic testing always be integrated with genetic counseling, that such counseling be provided by nonmedical personnel under medical supervision, and that consent be required for testing. The Commission of the German Society for Human Genetics also supports genetic testing only within nondirective genetic counseling. This commission also holds that screening for nonmedical information, such as the sex of the fetus, should be prohibited, and that information obtained by genetic testing is to be strictly confidential.

The Federation of Swiss Physicians asserted in 1991 that genetic analysis for occupational health or insurance issues must always be rejected, even if consent is given and the information is to be confidential. The Swiss Academy of Medical Sciences guidelines of 1993 assert that genetic testing must be part of a larger counseling relationship. The academy supports voluntary testing for (1) diagnosis of hereditary diseases, (2) carrier testing and genetic counseling for family or career planning, and (3) presymptomatic testing whenever medical intervention or changes in lifestyle may reduce or postpone disease. Counseling and education prior to testing are obligatory. Article 24 of the Swiss Constitution states that "the genetic endowment of a person cannot be analyzed, registered or revealed without that person's consent or a legal prescription." Probably still in 2003, a new federal act on human genetics will be enacted, regulating genetic testing in humans and providing safeguards against genetic discrimination.

In Austria a Gene Law was introduced in July 1994, regulating genetic counseling, diagnostics, and manipulation both inside and outside human beings. It prohibits any release of genetic information to third parties, notably insurance companies and employers.

ORGAN TRANSPLANTATION. Germany's long awaited Transplantation Act came into force in 1997. Basically, it confirms what had been the current policy regarding posthumous organ retrieval, namely the requirement of explicit prior consent by the donor, or substitute consent by his or her proxy. In addition, it restricts live donation, rules out any commercialization, and legally acknowledges the whole-brain definition of death (according to which a complete cessation of brain functioning indicates a person's death).

Various drafts for a transplantation law were debated over several years. The most likely legal regulation had once been a policy requiring that donation be requested of the deceased potential donor's proxy, consent of the patient being presumed if he or she had not objected to organ donation. Protests were raised against these suggestions, however, on the grounds that they disregard the right to self-determination and represent an uncritical protransplantation ideology. Among the protestors were a number of Protestant theologians, despite the fact that both the Protestant and the Catholic churches had officially praised organ donation.

The whole-brain definition of death was at the center of much debate and protest. German physicians officially adopted this definition in 1982, but this position has been a matter of intraprofessional policy, rather than legal statute. Rising concerns about the definition's underlying, allegedly reductionist concept of human life (spurred by recent cases involving attempted continuation of pregnancy in brain-dead women by maintaining them for weeks on life support, and by rumors that authorities of the former East Germany sold organs, sometimes prior to fulfillment of death criteria) had fueled public suspicion and professional objections, and had even raised the possibility of revision of the brain-death formula (Hoff and In der Schmitten).

In Austria, the 1982 Krankenanstaltengesetz presumes consent to organ procurement if the donor or his or her proxy do not oppose it—without, however, explicitly requiring that the proxy be informed about his or her right to oppose.

In Switzerland, the cantons (states) have different legal requirements for organ transplantation, with a majority having a presumed-consent policy. Efforts are being made to issue a federal transplantation law, which will likely be enacted in 2004.

Germany is a member of the Netherlands-based Eurotransplant Center, which computerizes the distribution of available organs, primarily according to tissue compatibility, among a network of European transplantation units. Organ information and distribution centers in Switzerland and Austria are more loosely affiliated with Eurotransplant.

RESOURCE ALLOCATION. Social-welfare systems in each of these countries provide almost universal coverage for health-related costs, as well as allowances for certain conditions (e.g., maternity, disability, old age, work-related injuries, dependent children). Overall health conditions, healthcare, and access to physicians are very good in each of these countries.

However, the steadily increasing costs of modern medical care have begun to endanger the unlimited approval of the underlying "solidarity principle" by which the rich and healthy pay for the care of the sick and needy. Moreover, various cost-containment policies that claim to increase cost-effectiveness without decreasing the quality of care have slowly increased public awareness of the underlying ethical questions of distributive justice and permissible rationing criteria. The debates on a decent maximum of generally accessible healthcare have only started. Again, public concern about a renaissance of Nazi spirit is raised by the prospect of rationing treatment, which might discriminate against the disabled and elderly.

ANIMAL EXPERIMENTATION. Strong concern exists throughout Europe for the ethical use and protection of animals in research. Swiss guidelines, inspired by animal-rights activists, have served as the basis for regulations in other countries. In the late 1970s, Switzerland became the first European country to include animal protection into its constitution, and in 1992 an amendment granted constitutional protection to the "dignity of creation." Germany's 1986 Animal Protection Act (Tierschutzgesetz) was revised in 1998 and contains detailed regulations concerning the type of experiments permissible, selection criteria for animals, supervision by qualified veterinarians, and standards for the treatment of animals in agriculture and as pets. Notice must be given to qualified animal-welfare commissioners. Animal-welfare committees exist in all states, with membership based on nomination by animal-welfare groups and academic training and professional experience. This legislation is supplemented by public education and information campaigns designed to bring about more humane treatment of animals in all spheres. The 1998 revision made it obligatory for any institution experimenting with vertebrates to appoint a qualified person to be officially responsible for animal protection. Experiments on dogs, cats, and apes require their being bred for research. Animal experiments for developing any kind of cosmetic product are prohibited.

In 2002 Germany finally—after more then ten years of debates, and through the addition of two words—incorporated animal welfare into its constitution. Article 20a of the German Constitution now reads "The state takes responsibility for protecting the natural foundations of life and animals in the interests of future generations." This amendment will not have any immediate effect, but it will influence the way in which future German legislation is drawn up and current laws are interpreted.

Austria passed its Animal Research Act (Tierversuchsgesetz) in 1989, which provides for criminal penalties if research is not reviewed or performed ethically or responsibly and according to current scientific standards. The law also calls for a reduction in the number of experiments performed and the number of animals affected. Attempts for a federal animal protection law unifying existing legislation in individual countries have so far been as unsuccessful as those for including animal welfare in the Austrian Constitution.

Conclusion

Despite a comparatively delayed academic and public interest in modern biothics in the three German-speaking countries, and despite some tendencies to avoid debates on certain issues regarding human life because of past atrocities, the field and its substantial and methodological problems have become widely acknowledged as important.

bettina schoene-seifert

hans-martin sass

laura jane bishop

alberto bondolfi (1995)

revised by bettina schoene-seifert

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