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BFH: "German middle ground" lawful for artificial insemination


Treatment widespread in Germany is tax-deductible
The Federal Finance Court (BFH) in Munich considers the “German middle way” to be lawful when it comes to artificial insemination. According to a judgment published on Wednesday, August 23, 2017, it is compatible with the Embryo Protection Act if more than three egg cells are fertilized per cycle (Az .: VI R 34/15). Appropriate treatment is therefore tax deductible as an extraordinary burden.

In this specific case, a couple could not have children naturally because the man's sperm could not penetrate an egg. The couple received intracytoplasmic sperm injection (ICSI) in Austria. Egg cells are removed from the woman and then sperm are injected into the egg cells outside the body.

With this method, the doctors fertilized four eggs at first, then seven eggs in the second attempt when no pregnancy occurred. The man also wanted the tax office to contribute to the bill of 17,260 euros. However, this refused to be recognized as an extraordinary burden. Because according to the Embryo Protection Act, only three egg cells should ever be fertilized per cycle.

The BFH has now confirmed that couples can only claim the costs of artificial insemination in a tax-reducing manner if the treatment complies with the requirements of German law. However, this does not rule out fertilization of more than three egg cells.

The background is a conflict of goals in the case of artificial insemination. On the one hand, high-level multiple pregnancies should be avoided, because these are associated with considerably higher risks for mother and children. Therefore, according to the Embryo Protection Act, a woman may not use more than three embryos.

On the other hand, the law emphasizes the importance of life protection in Germany. The production of embryos "in stock", which is common in numerous other countries, is therefore considered incompatible. Therefore, no more embryos may be created per cycle than the woman is to use later.

Taken together, these regulations are interpreted in a narrow interpretation so that only three embryos can be fertilized per cycle.

In fact, this is usually handled differently. The reason is that only 20 to 30 percent of the fertilized egg cells develop in such a way that there is actually a chance of a later pregnancy. Therefore, doctors try to estimate in advance how many egg cells need to be fertilized so that they can use one or two viable embryos for the woman.

This is known as the “German middle way”. In other countries such as Sweden, many more egg cells are fertilized and the woman is only used one or two "top embryos". This leads to a significantly lower number of multiple pregnancies - at the price that "remaining" embryos have to be disposed of like garbage.

According to the BFH ruling, couples could not claim such treatment in Germany to reduce taxes because it does not meet the requirements of the Embryo Protection Act.

However, the law allows fertilization of more than three egg cells. This is necessary so that the treatment has sufficient chances of success. The “German middle way” is therefore compatible with the Embryo Protection Act if the number of fertilized eggs is based on a “careful and individual prognosis”.

This is evidently the case with four fertilizations, according to the BFH in its judgment of 17 May 2017, which has now been published in writing. However, the Baden-Württemberg Finance Court in Stuttgart should still examine whether due to the individual health conditions of the father and mother in the second cycle seven eggs had to be fertilized. mwo / fle

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