This interdisciplinary, cooperative comparative law project examines the extent to which legal systems with differing socio-cultural backgrounds provide (criminal) law protection to in vitro embryos and what (controlled?) freedoms they grant to the practice of reproductive medicine and research on embryos. Possibilities and limits of international consensus-building are presented and approaches for legislative treatment of remaining dissonances are developed.

The de­gree and types of leg­al pro­tec­tion ex­tracor­por­eal em­bry­os should be gran­ted is cur­rently one of the most con­tro­ver­sial leg­al policy is­sues of med­ic­al law. For in­stance, while stem cell re­search­ers use em­bry­os in their work in the hopes that their use will lead to im­prove­ments in the treat­ment of curently in­cur­able dis­eases, and phys­i­cians and couples seek­ing to have chil­dren wish in cer­tain cases to per­form preim­plant­a­tion dia­gnostics on early em­bry­os, oth­ers, cit­ing the right to life and hu­man dig­nity, find that such meas­ures can­not be le­git­im­ized. Not only the ex­tent of pro­tec­tion is the sub­ject of de­bate but also how ex­actly the term "em­bryo" should be defined.

With­in the scope of a wider in­ter­dis­cip­lin­ary pro­ject on the status of ex­tracor­por­eal em­bry­os (with the par­ti­cip­a­tion of schol­ars from the fields of eth­ics, medi­cine, bio­logy, psy­cho­logy, so­ci­ology, philo­sophy, and jur­is­pru­dence), the com­par­at­ive law por­tion of the pro­ject ad­dressed – with a spe­cial fo­cus on the sig­ni­fic­ance of crim­in­al law – the in­ter­na­tion­ally highly di­verse per­spect­ives with re­spect to en­ti­tle­ment to and scope and mode of pro­tec­tion. In ad­di­tion to the func­tion­al lim­its of crim­in­al law, its ter­rit­ori­al lim­its were also a re­search sub­ject as the is­sues as­so­ci­ated with med­ic­al re­search tour­ism and re­pro­duct­ive tour­ism were also stud­ied.

The goal of this pro­ject was to gen­er­ate a new in­ter­na­tion­al per­spect­ive on the status of ex­tracor­por­eal em­bry­os by look­ing bey­ond na­tion­al bor­ders. The co­oper­a­tion of com­par­at­ive law schol­ars from 16 coun­tries and leg­al cul­tures, se­lec­ted on the basis of their di­versity (Aus­tria, Bel­gi­um, China, Den­mark, France, Ger­many, Great Bri­tain, Greece, Is­rael, Italy, Ja­pan, Po­land, Spain, Switzer­land, USA, and Is­lam), served the goal of re­cip­roc­ally en­rich­ing the vari­ous na­tion­al dis­cus­sions with in­put re­gard­ing the pro­tec­tion of early hu­man life. In work­ing out the reas­ons be­hind ex­ist­ing sim­il­ar­it­ies and dif­fer­ences, un­der­stand­ing of di­ver­gent stand­points was deepened and a step made to­wards their con­ver­gence; a concept for deal­ing at the na­tion­al and in­ter­na­tion­al levels with – at least – cur­rently un­solv­able dif­fer­ences was also de­veloped.

Based on a uni­form out­line with de­tailed ex­plan­a­tions, in­di­vidu­al re­ports were first writ­ten for each coun­try or cul­tur­al area. Pre­lim­in­ary ver­sions of these re­ports were used to pre­pare a col­loqui­um for coun­try re­port­ers to which par­ti­cipants from the vari­ous pro­ject dis­cip­lines were also in­vited. The col­loqui­um ad­dressed the fol­low­ing is­sues: rules on the cre­ation of in-vitro em­bry­os; rules on their use with­in and bey­ond the scope of med­ic­ally as­sisted re­pro­duc­tion; pos­sib­il­it­ies and lim­its of com­mon po­s­i­tions; how to deal with dis­sent; as well as reg­u­la­tion at the in­ter­na­tion­al level. Fol­low­ing their re­vi­sion after the col­loqui­um, the coun­try re­ports were the sub­ject of com­par­at­ive law and leg­al policy ana­lyses. In ad­di­tion, throughout the life­time of the pro­ject, its de­vel­op­ment was re­por­ted and dis­cussed at reg­u­larly oc­cur­ring con­fer­ences.

One sig­ni­fic­ant find­ing emerged from the pro­ject, namely, that all leg­al sys­tems provide the ex­tracor­por­eal em­bryo a cer­tain de­gree of pro­tec­tion from ar­bit­rary, un­con­trolled treat­ment. To be sure, the scope, leg­al policy in­ten­tion, tech­nic­al leg­al struc­ture, and func­tion­al sig­ni­fic­ance of crim­in­al law vary tre­mend­ously. With re­spect to the ter­rit­ori­al lim­its of crim­in­al law, the reti­cence of even re­strict­ive coun­tries with re­gard to pen­al­iz­a­tion of of­fenses com­mit­ted abroad is strik­ing. The com­par­at­ive leg­al res­ults of the pro­ject were pub­lished in two volumes in 2007 (Es­er/Koch/Seith, In­ter­na­tionale Per­spekt­iven zu Status und Schutz des ex­trakor­por­alen Em­bry­os; Seith, Status und Schutz des ex­trakor­por­alen Em­bry­os).