The restrictions on stem cell research in Germany may leave scientists there with only one legal option for producing embryonic stem cells for research: leaving the country. For those who remain in Germany, even collaborating with international colleagues on new lines could leave them at risk of prosecution, according to government officials and legal experts.
Germany's 1991 Embryo Protection Law bans the production of human embryonic stem cells. Under a hotly debated law that took effect in 2002, scientists now can apply for licenses to import embryonic stem cells, but only from cell lines that date before January 1, 2002.
Those found to have been working on newer lines, or creating stem cell lines, are liable to prosecution. If convicted, scientists could face fines or up to 3 to 5 years in prison.
Hans-Georg Koch, head of the Medical Law Department at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, told
Koch coauthored a 143-page study on the issue published last year on behalf of the German Research Foundation. "A scientist in Germany collaborating with colleagues abroad who are producing embryonic stem cells would definitely be illegal," he said. "Even giving research advice by E-mail to a colleague abroad would not be legal."
The legal position is less clear for a German-based scientist who collaborates with a colleague abroad when conducting research on existing embryonic stem cell lines, Koch said. "This is a gray area," he said, although his legal opinion was that such a scientist would not be breaking German law.
But few, if any, German scientists would be able to collaborate with foreign-based colleagues on such projects because of the legal uncertainty. "I don't think a German scientist could find [funding] sponsors for such a project," Koch said.
Florian Frank, a Germany Ministry of Research and Education spokesman, said that a German-based scientist would be committing a criminal act if he or she advised by telephone a colleague in London on creating embryonic stem cells. "Yes, this would be a violation of German law," he said.
Whether German scientists agree with the embryonic stem cell law, they must respect the will of the German people as reflected by the German Parliament, Frank said.
Frank noted that passage of the 2002 law was an extremely emotional and difficult process, requiring much compromise on both sides. As long as German scientists are conducting only basic research, the current law is sufficient, he said.
"This was one of the most intense debates in Parliament for years," Frank said. "At the moment, it is very important to fulfill the current law." Further legislative discussion will not start until German scientists are ready to start clinical stem cell research, he said.
Stephen Minger, a stem cell researcher from King's College London, said he had not known that German-based scientists who send him research advice by e-mail could be committing a criminal act. "That is chilling," he said. "The fact that a German scientist could not collaborate with us, I find that very worrying."
Minger, a US citizen who has worked in the United Kingdom for the past eight years, noted that German embryonic stem cell law contradicted the whole premise of the European Union. "The whole idea of the EU is to promote science without boundaries, without frontiers," he said.
The German laws have already encouraged stem cell researchers to leave the country. An article in the German magazine
One of those named in the article was Miodrag Stojkovic, who 2 years ago took a position at the University of Newcastle upon Tyne in the United Kingdom. Stojkovic is part of the team of Newcastle scientists that, earlier this month, was granted the United Kingdom's first license to create human embryonic stem cells using cell nuclear replacement.
Stojkovic, a native of the former Yugoslavia who now holds German citizenship, told
"I spent 11 years in Germany, a very nice 11 years," he said. "But I wanted to work with embryonic stem cells." Asked what he would do if production of embryonic stem cells were legalized in Germany, he said: "I would go back to Germany. Definitely."
Correction (posted September 1, 2004): When originally posted, this story incorrectly said that Hans-Georg Koch was head of the department of the Criminal Law Department at the Max Planck Institute for Foreign and International Criminal Law. The Scientist regrets the error.