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The Failure of the German Ethics Council

gbs criticizes over-representation of church interests


Photo: The Secular Bus Campaign 2019 in Weimar, where 100 years earlier the separation of church and state was decided

"The German Ethics Council should argue on a rational, evidence-based and ideologically neutral basis, but all too often this is prevented by the over-representation of church lobbyists," criticizes Michael Schmidt-Salomon, philosopher and spokesman of the Giordano Bruno Foundation. The new appointment of the committee on April 30th did by no means solve this problem, but rather exacerbated it.

"The fact that the majority of the members of the German Ethics Council spoke out against self-determination rights at the end of life and voted for a law that was declared unconstitutional by a unanimous decision of the judges in Karlsruhe is a scandal that has not yet been sufficiently addressed," says Schmidt-Salomon, who at the Federal Constitutional Court's oral hearing had pleaded as a "third-party expert" for the later repeal of Section 217 of the German Criminal Code. "The endorsement of an unconstitutional law is only one of many indications that the German Ethics Council repeatedly fails in its function. Interestingly, this happens above all when religious interests are involved, as the debates on circumcision of boys or pre-implantation diagnostics have also shown. To a certain extent, such deficits can be tolerated, but: If - as in the case of the discussion on assisted suicide - it turns out that the majority of the members of the country's most important ethics council are not able to argue within the ethical standards of the German constitution, this is no trivial matter to be taken lightly.

After the clear rebuke from Karlsruhe, a reorientation of the Ethics Council regarding its content as well as its composition of personnel should have been expected, but the new appointment of the body on April 30th, Schmidt-Salomon explains, was a step in a different direction: "The Council has not become more pluralistic, liberal or competent as a result of the new appointment. In 2017 there were nine members of the Ethics Council who voted in a minority-vote in favour of strengthening self-determination rights at the end of life. Two thirds of these liberal dissidents, i.e. six persons, are now no longer part of the current Ethics Council. The newly appointed members of the Council include a disproportionately high number of people with religiously conservative values - people who unfortunately must be assumed that they too would have voted for an unconstitutional law in 2017."

Nach der deutlichen Rüge aus Karlsruhe hätte man eigentlich eine Umorientierung in der inhaltlichen Ausrichtung sowie der personellen Zusammensetzung des Ethikrates erwarten dürfen, doch die am 30. April erfolgte Neubesetzung des Gremiums weise in eine andere Richtung, führt Schmidt-Salomon aus: "Durch die Neubesetzung ist der Rat nicht pluraler, liberaler oder kompetenter geworden. Immerhin gab es 2017 neun Ethikratsmitglieder, die sich in einem Minderheitsvotum für eine Stärkung der Selbstbestimmungsrechte am Lebensende ausgesprochen hatten. Von diesen liberalen Dissidenten sind nun zwei Drittel, also sechs Personen, nicht mehr im aktuellen Ethikrat vertreten. Bei den neu hinzugekommenen Mitgliedern des Rates sind Personen mit religiös-konservativen Werthaltungen überproportional stark vertreten – Menschen, von denen man leider annehmen muss, dass sie 2017 ebenfalls für ein verfassungswidriges Gesetz votiert hätten."

The composition of the German Ethics Council is not representative

Taking a closer look at the current members of the Ethics Council, a "grave ideological imbalance" becomes apparent, according to Schmidt-Salomon: "Among the 24 members of the German Ethics Council, almost half have a distinct religious background. Nine members, predominantly theologians, hold functions within the Christian churches or their welfare associations, two others represent Islam or Judaism, and only one member of the current Ethics Council, philosopher Julian Nida-Rümelin, has visibly stood up for the interests of non-denominational people in the past. In addition, Schmidt-Salomon said that there are other members of the Ethics Council "who, although they do not hold official church functions, nevertheless resolutely advocate church positions". An example of this was the lawyer Steffen Augsberg, who substantiated the concerns of radical "life protectors" with corresponding analyses (see for instance this article in the "Zeitschrift für Lebensrecht") and who "rhetorically very skilfully fought for a ban on professional assisted suicide" - both as a member of the German Ethics Council and as the Federal Government's representative in the proceedings on § 217 StGB before the Federal Constitutional Court.

Schmidt-Salomon's conclusion: "All in all, we must realize that the German Ethics Council in its current composition is not representative of the values held by the German population (see also the numerous presented studies on the website of the "Forschungsgruppe Weltanschauungen in Deutschland"). It reflects neither the convictions of non-denominational people, who make up 38 percent of the German population after all, nor the convictions of the nominal church members, the majority of whom deviate from the official church guidelines in ethical questions. In addition, the spokesman for the foundation sees a second problem: "Unfortunately, the German Ethics Council does not, in sum, represent the current level of academic debate in the field of practical ethics. Although there are members of the Ethics Council who do argue at the level of university discourse, they constitute a minority on the board. Here it is a pity that, for appointment to the Ethics Council, conformity with party political preferences is more important than the professional qualifications of the respective candidates."

What do to?

The Giordano Bruno Foundation already called for a new appointment of the German Ethics Council in 2011 after the Council had made a logically inconsistent and ideologically biased recommendation on preimplantation diagnostics (PGD). In the course of the parliamentary reappointment of the Council on April 30th, similar calls have now been made. According to its spokesperson, the Foundation emphatically welcomes these demands, but is sceptical that they will be successful. In recent years, the Giordano Bruno Foundation has experienced that appeals for the replacement of the Ethics Council have gone unheeded in the political arena, and thus it has increasingly begun to establish institutions which, among other things, critically accompany the work of the German Ethics Council.

In this context, the Institute for Secular Law (ifw) as well as the Hans Albert Institute (HAI) are particularly important: "The ifw writes legal-political expert opinions on current legislative initiatives and accompanies procedures that may lead to the repeal of unconstitutional regulations, in particular those that are biased towards a particular ideology. Currently, for example, it supports physician Kristina Hänel, who was sentenced on the basis of the controversial Section 219a of the German Criminal Code, in her proceedings, which we hope will ultimately be as successful as the constitutional complaints on Section 217 of the German Criminal Code. According to Schmidt-Salomon, the Hans Albert Institute, on the other hand, could be understood as a "Critical-Rational Ethics Council", in a sense as an "unofficial, non-governmental alternative organization" to the German Ethics Council: "The HAI will address similar issues as the German Ethics Council, but from a significantly different perspective and independent of any party political influence. The central purpose of the Institute will be to develop rational, evidence-based and ideologically neutral solutions to problems that are particularly difficult to deal with ethically and politically because of their religious or ideological implications".

A necessary corrective

An example of what the future work of the Hans Albert Institute could look like is the statement published a few weeks ago on "Patient Autonomy in Crisis", with which the Institute responded to the ad-hoc recommendation of the German Ethics Council on triage situations: "The statement of the German Ethics Council included many rational arguments, but in our opinion an important aspect of the topic was neglected, i. e. that the purpose of a humane health care system should not be the prolongation of life at any price, but the well-being of the patient and the consideration of the patient's will."

Of course, the Hans Albert Institute, founded in early 2020, is still largely unknown to the public, admits the gbs spokesman: "Unfortunately, the corona crisis prevented us from launching the Hans Albert Institute as originally planned. Nevertheless, I am convinced that over time the Institute will acquire a similarly positive reputation as the Institute for Secular Law. The HAI has already gathered many renowned experts in its ranks. Therefore, I am confident that the Institute will be perceived as a necessary corrective in the foreseeable future, rectifying things from a worldview neutral perspective, should the German Ethics Council come to similarly questionable recommendations in the future as it has done in the past".

Additional information: German politics does not only make problematic staffing decisions in the case of the German Ethics Council: Last Friday, May 15, Stephan Harbarth, member of the Christian Democratic Union (CDU), was elected President of the Federal Constitutional Court, who in 2015 had voted for an unconstitutional law (i. e. Section 217 of the German Criminal Code). On its Facebook page, the Giordano Bruno Foundation expressed its hope on Friday "that Harbarth, in his new function as the 'fifth man of the state', will give greater weight to the ideologically neutral principles of the Basic Law than to his Catholic religious convictions", which he had not succeeded in doing as a member of the Bundestag, neither in the debate on assisted suicide nor on same-sex marriage. In this context, the Foundation referred to a commentary by Jacqueline Neumann (coordinator of the Institute for Secular Law) published in March 2020.