Jörn Ipsen, Osnabrück
It the question were raised, whether the German Basic Law “prohibits” cloning, my answer could be rather short. But this is not the case. The constitution as the basic law of a state does not normally prohibit acts of individual citizens. However, the assertion that the German Basic Law does not prohibit cloning has to be qualified: Human Cloning is prohibited by an ordinary law - § 6 of the Act for Protection of Embryos1 - and can be punished by imprisonment up to 5 years.
In contrast to my first statement the subject of this part is: “Does the German Basic Law protect against Human Cloning?”. Therefore, the obviously more complex question is raised: whether and to what extent embryos are protected by the constitution. This question cannot be answered in one sentence but rather leads us into the dogmatic intricacies of fundamental rights.
I would like to begin with the premise that various legal and moral values find their expression in the Basic Law - especially with respect to fundamental rights.2 But the pertinent constitutional provisions do not contain any ideological principles or philosophical doctrines, nor can they be derived from these provisions. This is particularly the case with regard to the term “Human Dignity”, which we will consider soon. Historically, this term was used by philosophical authors in connection
1 Reprinted in the annex of this volume, under V 20.
2 The Constitutional Court postulates an “order of values” (Wertordnung):
BVerfGE 5, 85, 204 et seq.; 6, 55, 72; 7, 198, 204 et seq.; 21, 362, 371 et seq.; 49,
89, 141. See H. Goerlich, Wertordnung und Grundgesetz (1973).
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Publication information: Book title: Human Dignity and Human Cloning. Contributors: Silja Vöneky - Editor, Rüdiger Wolfrum - Editor. Publisher: Brill. Place of publication: Boston. Publication year: 2004. Page number: 69.
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