Verdict PKV does not have to pay fertilization for egg donation

Federal Court of Justice: Prohibition in Germany proposes performance obligation
Even private health insurers do not have to bear the costs of artificial insemination using egg donation. This was decided on Wednesday, 14 June 2017, the Federal Court of Justice (BGH) (Ref .: IV ZR 141/16). As grounds, the Karlsruhe judges declared that the validity of German law was customary in the contractual terms. This means that the insurer only has to pay for treatments that are allowed under German law in Germany.

Thus, the BGH dismissed a woman from Bavaria. She was initially childless. Because egg donations are banned in Germany, in 2012 she went to a center for artificial insemination in the Czech Republic. There succeeded after several attempts artificial insemination with donor eggs. The woman got such a child.

From her private health insurance she demanded the reimbursement of the costs in the amount of around 11,000 euros. The insurance refused.

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Like the Higher Regional Court of Munich, the BGH was now right to insure the insurer. The insurance contract was based on the model conditions of the German private health insurer. These stipulated that German law applies to the contract and that the scope of the services is governed, inter alia, by the German statutory provisions.

This should be interpreted as meaning that the private health insurer "only has to reimburse expenses for such medical treatment, which are permitted under German law in Germany," the BGH ruled. Although the insurance cover extends to other European countries. But that does not mean the territorial scope "and does not mean that the insurer has to reimburse expenses for treatments that are banned in Germany but allowed in other European countries".

According to the Embryo Protection Act, egg donation is prohibited in Germany. A liability of the private health insurance therefore does not exist. The fact that egg donations are allowed in the Czech Republic does not change that.

The Karlsruhe judges admitted that this meant a restriction of EU legal service freedom of listing. However, because of the protective purpose of the provision, it is justified.

In 2015, however, the BGH ruled that Czech doctors in Germany were allowed to promote egg donation in the Czech Republic (judgment of 8 October 2015, file no .: I ZR 225/13, JurAgentur notification of the following day). mwo