Abstract
Legal scholarship and jurisdiction in post-war Germany define “human dignity” in terms of constitutional-violation procedure. The scope of protection is defined negatively: evidence derives from the fact of its negation1 (e.g., the state-ordered execution of the mentally ill or Germany’s temporary departure from the ranks of civilised nations from 1933 to 1945). Thus, the treatment of a human being as the mere object of state, scientific, or economic action infringes the inviolability of human dignity. Relevant as it is to any interpretation, this specific historical background alone is insufficient. Above and beyond it, human dignity is “the very status of being, which ‘is’ independent of time and space, and which ‘should’ be realised through the law,”2 — a universal value on the level of impartiality and equality.
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References
Groundbreaking G. Dürig’s early works, culminating in his commentary on Arts. 1 and 2 in Maunz-Dürig, Grundgesetz (1958). This publication remains challenging, after 45 years, and still draws differing opinions. On Dürig’s approach, see W. Graf Vizthum, Die Menschenwürde als Verfassungsbegriff, JZ 1985, 201 et seq.; an earlier version of the following sketch in Henne/Riedlinger (eds.), Das Lüth-Urteil in (rechts-) historischer Sicht (forthcoming 2004).
G. Dürig, Der Grundrechtssatz von der Menschenwürde, AöR 81 (1956), 117, 125.
Cf. also C. Enders, Die Menschenwürde in der Verfassungsordnung (1997);
P. Häberle, Die Menschenwürde als Grundlage der staatlichen Gemeinschaft, in HdbStR, Vol. II (3rd ed., 2004), 317 et seq.;
T. Geddert-Steinacher, Menschenwürde als Verfassungsbegriff (1990), 164 et seq.
With stronger emphasis on the reason-postulate behind the value-postulate, see E. Picker, Menschenwürde und Menschenleben (2002); id., in Schweidler et al. (eds.), Menschenleben — Menschenwürde (2003), 197 et seq. Dürig’s “object formula” (Objektformel), canonized by the Federal Constitutional Court, is ultimately an adaptation of Kant’s practical imperative, based on the principle of reciprocity. The negative definition arises only where evidence already exists.
All article and paragraph references are to the German Basic Law (Grundgesetz), except where otherwise noted. An English translation of excerpts of the Basic Law is reprinted in the annex of this volume, under V 21.
Thus, it apparently becomes difficult to maintain the thus far ethically important distinction between pluripotence and omnipotence of cells (in the sense of capability to create a whole). It seems that adult stem cells can create more organ systems than previously assumed. Indeed, the certainty that adult stem cells cannot be omnipotent seems to have been lost. Only the genetic trigger for the potency to create a whole is not yet known. Embryoid bodies resemble embryos but stop developing after a certain stage. If the trigger for the potency to create a whole were discovered, and if it could be turned to “off,” it would solve key ethical problems of therapeutic cloning. But as long as we do not know the connection, these problems are all the more urgent.
The proximity of the given legal interest to human dignity is decisive. BVerfGE 39, 1, 43; BVerfGE 35, 202, 225: The more elementary a particular freedom is, the greater the realization of the basic right must be, in terms of practical concordance (the strengthening function of Art. 1, para. 1). For example, as the data from a genome analysis becomes more individualized and personalized, the need for data privacy and protection increases correspondingly. And vice versa: the basic rights indeed have “their respective roots in Art. 1 but find their various explications and prerequisites in a specific area of civil liberties.” P. Kirchof, Genforschung und die Freiheit der Wissenschaft, in Höffe et al. (eds.), Gentechnik und Menschenwürde (2002), 9, 19. In other words, the guarantee of human dignity has its “grounding” and initial development “especially in the right to life, that is, in the prohibitions of the death penalty, torture [etc.].” M. Borowsky, F.A.Z. of 17 October 2003.
See BVerfGE 1, 97, 104; BVerfGE 39, 1, 37, 41; BVerfGE 88, 203, 252. Formulated at an early point by Dürig, supra note 1 (Art. 1, No. 2), this approach was eagerly received in the literature. See, for example, D. örr, “Big Brother” und die Menschenwürde (2000), 38 et seq. (discussing the limits of duties of protection, as well). Of course, protection of life is also a term, influenced by values.
Generally, “reproductive cloning” (i.e., cloning in order to procreate a child) is differentiated from “therapeutic” or scientific cloning (though the very possibility to make such a distinction is debated). Some expect that cloned embryonic stem cells, for example, could later be used for tests of prescription drugs. Already, one anticipates the creation of “designer babies” with eugenic selection of intelligence, sex, and personality and the eventual progression into a “post-human future,” in which we can alter humanness at its core. Admittedly, no one seriously supports reproductive cloning, particularly with its horrendous medical risks (apparently, adult donor cells pass on their genetic age). Some say therapeutic cloning has a more realistic chance for development, even if it is still in its infancy.
BVerfGE 88, 203, 204 (l.r. 10), 261: “Moreover, the protection mandate obligates the state to vitalize the right to protection of unborn life and to keep it in the general consciousness” (2d Abortion Decision). On the conception of the duty of protection, see, for example, G. Hermes, Das Grundrecht auf Schutz von Leben und Gesundheit (1987), 43 et seq. On the dogmatics of “sphere of protection” and “object of protection,” see P. Lerche, HdBStR, Vol. V, para. 121, No. 11 et seq.; J. Isensee, ibid., para. 111, No. 40 et seq.
Compare, on the one hand, illegal but not punishable abortion until the twelfth week of pregnancy — certainly not a powerful protection of unborn life — with, on the other hand, the inadmissibility of using leftover, test-tube embryos, say, for the production of pancreatic tissue cultures. Put another way (with regard to prohibited PID): how do legal dogma and politics get around the contradiction of values that an embryo may be killed without penalty (and often financed by medical insurance) after up to three months in the womb, while a newly created embryo may be neither analyzed nor singled out.
Cf. H. Goerlich, Wertordnung und Grundgesetz (1973).
Geddert-Steinacher, supra note 2, 6, refers to the danger of a “fundamentalization” of the argument for human dignity, ibid., 27 et seq. (discussing also the openness of the term dignity). On the ambivalence of the argument for human dignity, see C. Hillgruber, Der Schutz des Menschen vor sich selbst (1992), 104 et seq.;
W. Graf Vitzthum, Gentechnologie und Menschenwürdeargument, ZRP 1987, 33 et seq. Art. 1, para. 1 is the emergency brake in the constitutional system of protection of legal interests, the Basic Law’s ironclad reasoning, reserved for instances of grave endangerment. Note also the fact that especially European states (as with Germany) see dignity as a normative principle, emerging after liberation or revolution, in response to an oppressive, inhuman regime (Italy, Greece, Spain, Portugal, etc.).
Cf. R. Alexy, Theorie der Grundrechte (1985), 136 et seq., 142 et seq. (responding to criticism for subjectivity and supporting a “soft” value order). Naturally, every norm contains a bit of voluntarism or decisionism.
Kant’s sense of transcendental philosophy is the doctrine of a priori conditions of human cognition. In the context of human dignity, this philosophy is used where consensus fails.
Cf. B. Zypries, Federal Minister of Justice, speech on 29 October 2003 in Berlin, reprinted in this volume, pp. 107 et seq. Indeed, protection of life from fertilization (such has already been advanced for example by R. Herzog, JR 1969, 441), but, because impregnated egg cells have “solely the prospect to cultivate [...] the constitutive elements of human dignity”, they are not “award[ed] human dignity” (p. 112), in the sense of Article 1 (consequently Zypries used the prevailing doctrine and the draft of the EU Constitution to qualify the guarantee of human dignity as a basic right — which could mean the first step toward erosion and the opening of the backdoor for a weighing of values). When human dignity “develops” (after nidation in the uterus (approx. two weeks after fertilization), after organ differentiation (approx. three months after fertilization), after birth?), who “awards” it, under what procedure, and by what legitimization are not answered. As a result, speaking of “mere prospect” or “awarding of human dignity” could represent a step in the direction of an “adoption society,” with potentially grave effects for disabled children or the elderly, who no longer have such “prospect” to “develop as humans” or to “reestablish their humanness,” that is, to be “awardable.”
From a personalized view, the embryonic stem cell has no history and is far from having the status of recognizable individuality. Stem cells from artificial fertilization (embryonic stem cells) or stem cells extracted from several day old embryos (embryonic germ cells) imply the destruction of the embryo. The extraction of stem cells from human embryos is banned in Germany. The Embryo Protection Law of 1990 (reprinted in the annex of this volume, under V 20) permits artificial fertilization of an egg cell only for purposes of impregnation. With this background, the Stem Cell Act of 2002 (reprinted in the annex of this volume, under V 19) regulates the importation and use of stem cells. It is permissible for high ranking, ethically justifiable research projects, where no other option would suffice — “a taste of the fruit of the poisoned tree”?
The prohibition of defining “worthy” and “unworthy” life became a central component of Article 1, due to its historical development out of the Nazi contempt for human life. On the Basic Law’s conception of the “human,” cf. BVerfGE 4, 7, 15 et seq.: in principle, there is no priority for the individual’s legal position. Article 1, paragraph 1 results from the connection with the basic rights and the rule of law (Art. 79, para. 3), as well as the basis of the Basic Law, in protection of subjective freedom, and the basis of the legitimization of the state and the law.
Address of thanks on his 65th birthday, JöR 36 (1987), 91, 95.
Cf. E. W. Böckenförde, Die Würde des Menschen war unantastbar, F.A.Z. of 3 September 2003 criticising the new commentary to Art. 1, para. 1 Basic Law in Maunz-Dürig, supra note 1, by M. Herdegen (2003).
All quotations are from A. W. Wood (ed. & translator), Groundwork for the Metaphysics of Morals (2002). See also Kant’s later work, The Metaphysics of Morals (1797). Parallel passages in Goerlich, supra note 10, 159 et seq.
Groundwork, supra note 18 (here and in the following quotations, italics in original), 52–53 (= BA 77).
Ibid., 45, 47 (= BA 67). Can Kant’s overall approach help at all in protecting the embryo and in cloning? Typically, Kant’s perspective is used in legal-philosophical essays primarily with respect to general justification of the law and the mutual limitations of everyone’s external freedom. And this freedom is always that of a born human. Thus, human dignity and being an end-in-itself seem rather to be within the domain of morality, which — aside from its indefi-niteness — carries no compulsive requirements for the law. This, possibly, must be reconsidered. Cf. K. Kühl, Strafrecht und Moral — Trennendes und Verbindendes, in Amelung et al. (eds.), Festschrift für H.L. Schreiber (2003), 959 et seq. Of course, Kant differentiated between autonomous “morality” and heter-onomous “legality.”
In constitutional law, despite the reference to God in the Basic Law’s preamble, the principle of dignity can be substantiated without religion — solely by secular notions. But one can find the existence of a deductive interrelation (Isensee): the idea of human rights was conceived on the ground of Christianity. H. Heller already argued for the specifically Christian origin of the idea of human dignity and the equal freedom of all those with “human countenance” in his Staatslehre (1934). The biblical declaration that humans are made in God’s image renders the understanding of human dignity independent from currently measurable, social consensus. Such consensus could deteriorate with the fading of a common basic value. On the position of the German state churches, cf. M. Kock, DRiZ 2002, 199; K. Lehmann, ibid., 192.
Of course, Kant imagines (in recognition of the community of species [Gattungsgemeinschaft]) the human as “a rational being, obeying no law but that which he himself also gives” (Groundwork, supra note 18, 67 [= BA 77]) -the individual’s unassailable value as participant in a system (of principles for thought) that ultimately transcends human reason.
This has always seemed, in my opinion, to be an especially enlightening element (species-conserving, since it is life-conserving) of Kant’s practical philosophy. According to Kant, the bearer of reason is connected with all of nature via her or his institutional world. Practically, reason appears primarily as legal obligation of the will. The human fulfills its purpose by acting according to reason (which is considered as supraindividual in the still current philosophy of enlightenment) and thus by acting ethically correctly.
The banality of this final statement should not prevent its recognition, especially when defining dignity “reasonably” and secularly.
This is, of course, controversial with regard to the various stages of pre-birth, individual human development. Nature (or the “nature of the object”) cannot provide the answer; only law can. Therefore, various qualifications persist, both globally and even among European nations. Only for conceptual naturalists does looking into a microscope replace the legal-political decision and the definitional jurisdiction of the culturally independent legislator (the WHO, for instance, considers a newborn to be an “infant in the first 28 days”). The practical side does offer the normative side certain points of contact, which seem less unfair than others. One example is the beginning of human life and its protective status; here, the merging of egg cells and sperm cells is the least arbitrary criterion.
Even when a human being is de facto incapable of self-determination, it remains in the human species, based on its ethic-autonomous potential, protected in a permanent, indispensable core of personality: a generic, species-based understanding of human dignity. “Human dignity ... is ... the dignity of the human as a person of kind (als Gattungswesen). Everyone possesses it. ... But the right of respect, which follows from it, is violable.” BVerfGE 87, 209, 228. No injury against a particular human being can violate its generally human (capability-independent) value — contingency and transcendence are separate categories.
BVerfGE 39, 1, 41. Some have attempted to delegitimate this key tenet with the first Abortion Judgment. For example, conceptually distinguishing an embryo from an inferior “pre-embryo,” a mere cluster of cells. Indeed, former Vice President Zeidler of the Federal Constitutional Court qualified it as a “raspberry-like object.”
Counter-argument (H. Markl, R. Wolfrum, et al.): the fertilized human egg cell is indeed genetically individualized and capable of development but not independently and of itself; rather, it can develop only after implantation in a receptive, female uterus and in constant interaction with the mother’s body (cf. also the position of the DFG, Humane embryonale Stammzellen (2001)). It is well established that these human zygotes have neither sensory nor motor reaction and thus are not capable of consciousness. From a scientific and medical standpoint, it is only certain that they could develop, while in the mother’s womb, into a birthable, viable human. But to consider a zygote a human (with full rights and dignity), simply due to its potential for development, requires further justification. At any rate, consensus certainly asserts that the human being is not to be equated with its genetic make-up. The embryo’s potential is finally, inescapably dependent on the pregnancy, an interactive process. Cf. also the DFG’s Recommendations for Research with Embryos of 03/05/2001, WissR 34(2001),287 et seq.
BVerfGE 39, 1, 41. The implantation of the approximately two week old embryo is the decisive condition for development of its life: the production of the permanent physiological supporting and interactive relationship to a physical mother. A completely extracorporeal development is not possible for any higher mammal. Italy’s Embryo Protection Law of December 2003 provides the fetus with human status from the point of procreation. Consequently, PID for the purpose of selection of embryos is criminalized, as are surrogate motherhood, sale of germ cells, and research on embryos. Same-sex partners, singles, and informal, heterosexual couples are excluded from artificial fertilization — on the whole, a victory for political Catholicism.
Where human life exists, it receives the protection of Art. 2, para. 2. Human tissue cells lack the telos of eventually becoming a human being. For a critical view of this “conceptually naturalistic” definition of the beginning of life, see H. Hofmann, Biotechnik, Gentherapie, Genmanipulation — Wissenschaft imrechtsfreien Raum?, JZ 1986, 258 et seq.;
W. Heun, Embryonenforschung und Verfassung — Lebensrecht und Menschenwürde der Embryos, JZ 2002, 517 et seq.
But see also C. Starch, Verfassungsrechtliche Grenzen der Biowissenschaft und Fortpflanzungsmedizin, JZ 2002, 1065 et seq.
PID, which is not yet ready to be used, is a matter of examining artificially fertilized embryos with the intention to identify genetic problems or other characteristics, sort out the sick or undesired embryos, and then only implant the others. Ultimately, this process of prenatal malformation diagnostics, with the possibility of subsequent abortion, is “positive eugenics,” the claim of the “right to decide over which human life shall have the right to develop” (Zypries, supra note 13, pp. 113 et seq.). Cf. also S. Schneider, Rechtliche Aspekte der Präimplantations- und Präfertilisationsdiagnostik (2002). In contrast, the supporters of PID point to flagrant contradictions in in the context of the legal regulation of abortion: greater protection for the embryo in vitro than for the embryo in vivo, and according to the Stem Cell Act (reprinted in the annex of this volume, under V 19) research is allowed (only) with certain imported stem cells from lines produced before 1 January 2002. This deadline supposedly prevents Germany from being the incentive for further destruction of embryos. Stem cells are extracted from the inside of the morula, that is, from approximately four day old, human embryos, which die off following the intrusion: thus, stem cell extraction is also embryo consumption.
Kant’s general reason contains the key to the cosmos; even God is bound by it. The natural endowment of reason on the human opens a rational means of communicating with God (cf. the theological concept, stating that a newborn has been known to God since time out of mind). Furthermore, sin does not negate the nature of having been created by God in his image. Human existence in accord with God is an existence in unity of human and human.
But cf. H. Dreier, Stufungen des vorgeburtlichen Lebensschutzes, ZRP 2002, 377 et seq.; cf. also the contrary contributions of J. Nida-Rümelin (ed.), Ethische Essays (2002);
R. Merkel, Forschungssubjekt Embryo (2002). Those who reject a multi-tiered protection of pre-birth life adhere to the paradigm of categorical equality among all stages of human life.
The Basic Law’s formula — as a value-oriented system with the individual and his or her dignity at the center (BVerfGE 2, 1, 12) — finds support in international and European law, though not displacing the ethical primacy on the EU or UN levels. Cf. M. Kotzur, Theorieelemente des internationalen Menschenrechtsschutzes (2001), 217 et seq.; ECJ, Case 29/69, Stauder, ECR 419, para. 6 et seq. (1969) (human dignity protects the individual’s self-determination over his living environment). Though still only soft law, the EU Charter of Human Rights (OJ 2000 C 354, 9 et seq.) contains absolute rights as well. These are, inter alia, results of the pointed guarantee of human dignity, with which the Charter begins (Chapter 1, heading; Arts. 1–5 EU Charter, reprinted in the annex of this volume, under IV 16), though without definition (or reference to humanity’s being in God’s image).
Similarly reserved in the face of contingencies, which limit universalism, P. Mastronardi, Menschenwürde und kulturelle Bedingtheit des Rechts, in Th. Marauhn (ed.), Die Stellung des Menschen im Völkerrecht (2003), 55, 73: “Human dignity [...] urgently must be universalized.”
Reprinted in the annex of this volume, under III 15.
Reprinted in the annex of this volume, under II 13.
Cf. L. Honnefelder et al. (eds.), Das Übereinkommen über Menschenrechte und Biomedizin des Europarats (1999);
J. Taupitz, Biomedizinische Forschung zwischen Freiheit und Verantwortung (2002);
I. Kamp, Die Europäische Bioethik-Konvention (2000). Neither the European Convention on Human Rights nor the Treaty on European Union mention the term “human dignity.” In European jurisprudence, it leads a life only in the shadows. Not so in the EU Charter of Human Rights, which accentuates the respect for human dignity and anticipates, inter alia, a ban on alteration of the human genetic constitution.
On the conception of the human in communitarism, see Mastronardi, supra note 35, 68 et seq. It is admittedly difficult to fully understand the debate over communitarism (as opposed to liberalism) outside of its U.S. American context.
As mentioned above, Christianity cannot be the determining fundament, which upholds the system of the Basic Law. It does, however, offer a “constitutional girder” (P. Kirchof). What has been abandoned are “the religious notions of the human in God’s image as a theological counterpart to human dignity and of translating the holiness of life into secular terms” (M. Borowsky).
Cloning further results in an unnatural parent-child relationship. A cloned child would be both child and twin sibling of the parent, whose genes were cloned. The child would not be the offspring of the other parent. Nonetheless, this parent would be expected to help raising a younger version of his or her spouse.
Zypries, supra note 13, p. 116. Zypries resists therapeutic cloning with the “flood-gates argument” that she otherwise avoids: “how can we be sure that these techniques will not be used to allow this embryo to mature beyond three or four days?” The more urgent question is to what degree this cloning crosses the boundary into consumption — or cannibalization — of human life. Cf. J. Taupitz, Der rechtliche Rahmen des Klonens zu therapeutischen Zwecken, NJW 2001, 3433 et seq.
Compare M. Herdegen, Die Menschenwürde im Fluß des bioethischen Diskurses, JZ 2001, 773 et seq. with Böckenförde, supra note 17. The latter rejects the “trial-like treatment,” which would have dignity emerge and evolve (e.g., pre- versus postnatal protection of dignity). Böckenförde also rejects the criticism that dignity would finally be surrendered to a weighing of values, as with every other legal position (a “sliding scale”). Cf. also Zypries, supra note 13, who in fact is much closer to Herdegen/Dreier, for example, than to Böckenförde/Kirchhof.
Here, European integration leads to particular problems in so far as the EU could support research projects that are prohibited in Germany.
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Vitzthum, W.G. (2004). Back to Kant! An Interjection in the Debate on Cloning and Human Dignity. In: Vöneky, S., Wolfrum, R. (eds) Human Dignity and Human Cloning. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6174-1_10
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