BFH German Middle Way in artificial insemination lawful

In Germany spread treatment tax deductible
The Federal Finance Court (BFH) in Munich considers the "German middle ground" in artificial insemination lawful. According to a judgment published on Wednesday, 23 August 2017, it is compatible with the Embryo Protection Law if more than three oocytes are fertilized per cycle (ref .: VI R 34/15). An appropriate treatment is therefore tax deductible as extraordinary burdens.

In this case, a couple naturally could not have children, because the sperm of the man could not penetrate into an egg. The couple was treated with intracytoplasmic sperm injection (ICSI) in Austria. Eggs are taken from the woman and then sperm are injected into the oocytes outside the body.

(Image: Dr_Kateryna / fotolia.com)

With this method, the doctors first fertilized four, when no pregnancy occurred then in the second attempt seven oocytes. On the bill for 17,260 euros, the man also wanted to participate in the tax office. However, this refused the recognition as an extraordinary burden. According to the embryo protection law, only three oocytes are likely to 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 meets the requirements of German law. However, this does not preclude fertilization of more than three oocytes.

Background is a conflict of objectives in artificial insemination. On the one hand, high-grade multiple pregnancies are to be avoided because they are associated with significantly higher risks for mother and children. Therefore, according to the embryo protection law of a woman, no more than three embryos may be used.

On the other hand, the law emphasizes the high priority of life protection in Germany. The usual production of embryos "in stock" in many other countries is therefore considered incompatible. Therefore, no more embryos may be produced per cycle, as later the wife should be used.

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

In fact, this is usually handled differently. Reason is that only 20 to 30 percent of fertilized eggs develop in such a way that there is a chance of later pregnancy. Therefore, physicians try to estimate in advance how many eggs must be fertilized so that they can use the woman one or two viable embryos.

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

According to the BFH judgment, couples could not claim such treatment in Germany as tax-reducing because it does not comply with the requirements of the Embryo Protection Act.

A fertilization of more than three oocytes but the law allows. This is necessary for the treatment to have any chance of success at all. The "German middle ground" is therefore compatible with the embryo protection law, if the number of fertilized eggs is based on a "careful and individual prognosis".

This would obviously be the case with four inseminations, the BFH stated in its judgment of 17 May 2017, which has now been published in writing. However, the Finanzgericht Baden-Württemberg in Stuttgart is still to examine whether, on the basis of the individual health conditions of father and mother in the second cycle seven ova had to be fertilized. mwo / fle