Munich( jur).A sperm bank does not have to give a widow the frozen sperm samples of her deceased husband. The postmortal personality right of the dead person would be violated in case of an artificial insemination, ruled the Oberlandesgericht( OLG) Munich( Az.: 3 U 4080/16) on Wednesday, February 22nd, 2017.In addition, the Embryo Protection Act, which would protect the child's well-being, was opposed.
This provides for up to three years of imprisonment or a fine if someone "knowingly fertilizes an egg with the seed of a man after his death".
In the now decided case a widow from Oberbayern had sued a sperm bank on the publication of 13 sperm samples of her deceased husband. The man had the sperm cryopreserved during his lifetime for later possible artificial fertilization. According to the contract, the man was the "sole owner" of the sperm. Death should be the end of the contract.
This actually came unexpected. The man died on July 31, 2015 following the effects of heart transplantation. The widow still wanted to be pregnant by her husband. She began a treatment in June 2014 in a "children's wish center" to be able to conceive. From the seed bank, she demanded the release of her husband's sperm samples.
The Samenbank rejected this and referred to the criminal provisions in the Embryo Protection Act. Otherwise, the seed would be guilty of the aid.
The widow went to court and insisted on her personality right and the right to procreation. The provision in the Embryo Protection Act is unconstitutional. She wanted to see and experience the genes of her deceased husband and her own in and around the child. This also prevailed on the aspects that the child grew up without a father and later learned how it was begotten. The childhood should be seen here as a matter of priority.
The OLG ruled that the widow can not demand the surrender of the seed samples. Even if they refer to their "right to procreation", this does not mean that every human being has a right to reproduce.
There is the possibility that the seed of the aid is liable to prosecution for breaching the Embryo Protection Law. The prohibition there of an artificial fertilization with the seed of a deceased was also constitutional. The legislator had thereby adequately taken into account the individual interests of man, woman and child.
Thus the legislature wanted to protect the child's wellbeing in particular. The fear of the impairment of childhood is real, especially as the date of the possible birth of the child from the date of the death of the deceased husband was removed."In the identification of the child, the idea could have a burdensome impact on a person who died already at the time of procreation," the OLG states. The interest of a widow, perhaps years after her husband's death, to be pregnant by him, must resign.
The appellant also denies that the postmortal right of personality of her deceased husband would be infringed by issuing the sperm. The latter had neither expressed in his contract with the seed bank nor in his will that his sperm should be used after death. The widow of the widow could not have the sperm samples, even in the absence of a declared will of the deceased. The revision to the Federal Court of Justice in Karlsruhe allowed the Higher Regional Court to be of fundamental importance.fle / mwo