Analytical Piece

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1  | INTRODUC TION

Since non- invasive prenatal testing (NIPT) was first introduced into the German market in 2012 it has provoked extensive public debate and controversy.1 The blood test is predominantly used to detect

aneuploidies such as trisomy 13, 18 and 21, yet it is also capable of searching for a growing spectrum of genetic conditions. Its non- invasiveness and early applicability have made NIPT a candidate worldwide for implementation within prenatal care.2 However, these features have also caused anxieties, as in the case of Germany.

 1Braun, K., & Könninger, S. (2018). Realizing responsibility. Institutional routines, critical intervention, and the “big” questions in the controversy over non- invasive prenatal testing in Germany. New Genetics and Society, 37(3), 248– 267.

 2Löwy, I. (2020). Non- invasive prenatal testing: A diagnostic innovation shaped by commercial interests and the regulation conundrum. Social Science & Medicine, 113064. https://doi.org/10.1016/j.socsc imed.2020.113064

Received: 30 March 2020  |  Revised: 21 December 2020  |  Accepted: 5 March 2021

DOI: 10.1111/bioe.12880

SPECIAL ISSUE: LEGACY OF THE HOLOCAUST

Avoiding ‘selection’?— References to history in current German policy debates about non- invasive prenatal testing

Hannes Foth

This is an open access article under the terms of the Creative Commons Attribution- NonCommercial- NoDerivs License, which permits use and distribution in any medium, provided the original work is properly cited, the use is non- commercial and no modifications or adaptations are made. © 2021 The Authors. Bioethics published by John Wiley & Sons Ltd.

Institute for History of Medicine and Science Studies, University of Lübeck, Lübeck, Germany

Correspondence Hannes Foth, Institute for History of Medicine and Science Studies, University of Lübeck, Königstrasse 42, 23552 Lübeck, Germany. Email: [email protected]

Funding information German Research Foundation

Abstract This article investigates the role of historical references and arguments in the current policy debate on non- invasive prenatal testing (NIPT) in Germany. It analyses major doc- uments and opinion statements, including the recent parliamentary debate (2019). The implementation of NIPT is accompanied by concerns and strong criticism, particularly in Germany. Many perceive the new test to be a problematic step that facilitates selective practices and is reminiscent of eugenics. Analysis of the German policy discourse shows that ‘eugenics’, and even more strongly, ‘selection’, are pivotal terms for rejecting NIPT and its coverage by public health insurance. They touch on a historical dimension in pub- lic deliberation, namely the fundamental distancing from the inhuman practices of the National Socialist period and anything that resembles them. However, using these terms to criticize prenatal genetic testing is controversial, and recent discourse demonstrates their avoidance as well, with many supporters of a limited coverage by public health insurance contrasting their approach with more widespread screening. Here, ‘screening’ has a negative connotation, and functions to demarcate the debate in a way that may reflect distance from certain modes of historical reasoning, but still expresses a special need to reconcile prenatal testing with the principles of dignity, inclusion and diversity. This article aims to elucidate the concerns involved in the national debates on prenatal testing and to increase awareness of the historical dimensions of the language and rea- soning with which such methods are negotiated today and in future.

K E Y W O R D S

eugenics, historical arguments, policy debate, screening, selection

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A key concern is that NIPT could strengthen practices of selection against people with disabilities. For some representative disability organizations and activists, critical networks, parliamentarians and so on, avoiding prenatal selection is a priority. This is expressed by the slogan ‘Inclusion instead of selection’,3 used during a demonstra- tion outside the German Federal Ministry of Health in Berlin on April 10, 2019.

‘Selection’ is of course a weighted and difficult term, especially in Germany. It contains historical references to the Nazi agenda of ‘ra- cial hygiene’, to the(ir) agendas of eugenics and ‘euthanasia’, and to the selecting out and murder of prisoners in the concentration camps.4 Although the concepts involved are not equivalent, they overlap significantly and are often associated. Historical ideas of eu- genics focused on improving the offspring of a particular community, either by encouraging certain forms of reproduction, or by prevent- ing some individuals or groups from reproducing. They implied cer- tain modes of selectivity and, at worst, the murder of those who were considered unworthy, as in the Nazi ‘euthanasia’ programme.5 In contrast, the constitution of the German Federal Republic, the Basic Law, and its central principle, the protection of human dignity, must be seen as a reaction to such atrocities.6 Preventing anything that resembled the crimes of the Nazi era became a recurring imper- ative in German post- war society and some of its civil society move- ments. However, the use of terms such as ‘eugenics’, ‘selection’ or ‘early euthanasia’ to criticize prenatal genetic testing remained con- troversial. This subject has been raised and developed since the early 1980s, mainly by disability advocates.7 Concerned critics of prenatal testing see reason enough to justify their wording, including histori- cal analogies with the agendas of the Nazi era as well as with a broader spectrum of eugenic ideas and practices. In contrast, several voices who support the offer of genetic testing or engage in the dis- cussion reject such analogies or find them offensive.8 Thus, referring to ‘prenatal selection’ and so on has also provoked strong countercriticism.

Previous German debates on biomedical technologies have been described as particularly permeated by historically grounded con- cerns, resulting in a tendency towards restrictive policies.9 The ques- tion therefore arises as to whether this expresses reasonable concern or hypersensitivity. However, it reflects the important role of Germany as a case study of historical reasoning and its interplay with modern technologies. The 2011 revision of the legal barrier to pre- implantation genetic diagnosis (PGD) suggested that some pa- rameters were changing; although warning against (eugenic) selec- tion remained a characteristic part of the debate10 it could not prevent rules on exceptions being introduced, allowing PGD under certain conditions.11 Subsequently, the introduction of NIPT became the next major controversy.

NIPT methods are based on the discovery of cell- free foetal DNA (cffDNA) in the maternal blood by Lo et al. in 1997, and were first brought to market in 2011.12 They are not associated with a risk of miscarriage, unlike invasive tests such as amniocentesis or chorionic villus sampling, and can be used as early as the 9th week of gesta- tion. Depending on the condition being tested for, its prevalence in the population and whether the pregnant women belong to known ‘risk groups’, varying levels of reliability can be achieved.13 Thus, the test has only a probabilistic character and a definitive (‘diagnostic’) result still requires invasive testing— which is one of the reasons why some prefer to speak of non- invasive prenatal screening (NIPS) in- stead of testing or diagnosis.14 Referring to it as ‘screening’ in the sense of a non- diagnostic method should not, however, be equated with NIPT implementation as (part of) a public screening programme, in the sense of a systematic offer to pregnant women without indi- vidual indications, a practice that is often rejected in the German debate.

The central aim of this article is to analyse how historical refer- ences to eugenics and selection surface in the recent policy debate

 3All quotations in German have been translated by the author.

 4The German term ‘Selektion’, adopted from the English ‘selection’ and Latin ‘selectio’, was not officially Nazi vocabulary, but was often used in the concentration camps. Eitz, T., & Stötzel, G. (2007). Selektion/selektieren. In T. Eitz & G. Stötzel (Eds.), Wörterbuch der “Vergangenheitsbewältigung”: Die NS- Vergangenheit im öffentlichen Sprachgebrauch (pp. 555– 566). Wissenschaftliche Buchgesellschaft.

 5Kröner, H. P. (1999). From eugenics to genetic screening. In R. Chadwick, D. Shickle, H. ten Have, & U. Wiesing (Eds.), The ethics of genetic screening (pp. 131– 145). Springer, pp. 133– 139.

 6Enquete- Kommission “Recht und Ethik der modernen Medizin”. (2002). Schlussbericht. Deutscher Bundestag Drucksache 14/9020, p. 12.

 7Köbsell, S. (2006). Towards self- determination and equalization: A short history of the German disability rights movement. Disability Studies Quarterly, 26(2). https://doi. org/10.18061/dsq.v26i2.692; Waldschmidt, A. (2006). Normalcy, bio- politics and disability: Some remarks on the German disability discourse. Disability Studies Quarterly, 26(2). https://doi.org/10.18061/dsq.v26i2.694

 8For some examples and comments on the course of this controversy, see: Eitz & Stötzel, op. cit. note 4, pp. 563– 564; Schultz, S. (2008). Vermeidung oder Rechtfertigung. Kritische Begriffe zu Pränataldiagnostik in der Defensive. Gen- ethischer Informationsdienst, 188, 21– 25.

 9Brown, E. (2004). The dilemmas of German bioethics. The New Atlantis, 5, 37– 53; Braun, K. (2005). Not just for experts: The public debate about reprogenetics in Germany. Hastings Center Report, 35(3), 42– 49; Wiesing, U. (1999). Genetics in Germany. History and hysteria. In R. Chadwick, D. Shickle, H. ten Have & U. Wiesing (Eds.), The ethics of genetic screening (pp. 147– 156). Springer.

 10Wüstner, K. (2006). Technological development and society: The discourse on PGD in Germany. In P.- L. Law, L. Fortunati & S. Yang (Eds.), New technologies in global societies (pp. 75– 104). World Scientific Publishing.

 11Braun, K. (2017). From ethical exceptionalism to ethical exceptions: The rule and exception model and the changing meaning of ethics in German bioregulation. Developing World Bioethics, 17(3), 146– 156.

 12Löwy, op. cit. note 2.

 13Dondorp, W., de Wert, G., Bombard, Y., Bianchi, D. W., Bergmann, C., Borry, P., Chitty, L. S., Fellmann, F., Forzano, F., Hall, A., Henneman, L., Howard, H. C., Lucassen, A., Ormond, K., Peterlin, B., Radojkovic, D., Rogowski, W., Soller, M., Tibben, A. … Cornel, M. C. (2015). Non- invasive prenatal testing for aneuploidy and beyond: Challenges of responsible innovation in prenatal screening. European Journal of Human Genetics, 23(11), 1438– 1450.

 14Gregg, A. R., Skotko, B. G., Benkendorf, J. L., Monaghan, K. G., Bajaj, K., Best, R. G., Klugman, S., Watson, M. S. (2016). Noninvasive prenatal screening for fetal aneuploidy, 2016 update: A position statement of the American College of Medical Genetics and Genomics. Genetics in Medicine, 18(10), 1056– 1065, p. 1057.

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on NIPT in Germany;15 it illuminates the course of the debate and the various ways in which major participants handle this vocabulary and its (historical) connotations (section 2), and reflects on emerging patterns, underlying approaches towards historical reasoning and conceptual considerations for further debate (section 3). Together the sections enable both a better understanding of the German pol- icy discourse on prenatal genetic testing and an increased awareness of the historical dimensions and sensitivities involved in current de- bates on the regulation of prenatal testing.

Looking at the problematization of NIPT in the light of historical categories, this case study focuses on a particular strand of the pol- icy discourse: it analyses public statements and policy documents by some of the key participants, namely public officials and representa- tives of professional organizations, as well as civil society groups. Media reporting and secondary literature are also quoted, mainly to describe the public perception of the debate. Data collection covers the years 2012 to 2019 and was conducted between 2017 and 2019 through an iterative online search and cross- checking of references in policy documents. From the large amount of material— a broad range of organizations repeatedly engaged in the debate— key publi- cations were identified and analysed, following an interpretative and hermeneutic understanding of policy analysis.16

2  | THE POLICY DEBATE ON NIPT IN GERMANY

Germany is currently implementing non- invasive prenatal testing (NIPT) in its pregnancy care sector. NIPT methods were introduced into the German market in 2012 by the then German company LifeCodexx AG, and their evaluation provoked a public contro- versy.17 Starting with specialized centres they were soon offered by many OB- GYNs as private health investments at prices that fell rap- idly from around EUR 1200 to EUR 200– 300 for a test for aneuploi- dies, and were even subsidized by some health insurance funds upon request.18

In Germany, health insurance services are delivered through a system of compulsory membership in either statutory or private in- surance. The standards for prenatal care are set by the Maternity Guidelines (‘Mutterschafts- Richtlinien’), which specify that basic services such as several ultrasound examinations should be offered to every woman, plus further examinations depending on their

classification as ‘high- risk pregnancy’ (‘Risikoschwangerschaft’) or medical indication.19 These include invasive testing such as amnio- centesis and chorionic villus sampling as well as more specific ultra- sound. Unlike many other countries, first trimester screening or the triple test are not explicitly included and are usually declared to be private expenses.20 The actual uptake of prenatal testing is difficult to ascertain, as the statistics available provide only limited insights.21 Basic ultrasound examinations are broadly used (though not by all); the use of non- invasive follow- up examinations and privately funded testing is also very common (between 70% and 85%, depending on the survey),22 but not officially recorded in detail. Their widespread use is often connected to a strong decrease in invasive testing (num- bers for amniocentesis fell from 8.2% of all pregnancies in 2002 to 1.1% in 2014),23 but is also linked to a debate on oversupply and false incentives.24 Termination rates after confirmed findings are only re- corded by some regions but indicate high numbers (such as more than 85% for trisomies), including many late abortions.25

NIPT’s early applicability raised concerns that it might serve to avoid the restrictions of the German Criminal Code (§218– 219), which tolerates abortion without medical indication until the 12th week after conception. The procedure might also be seen as a prec- edent for the interpretation of the Genetic Diagnosis Act, which en- tered into force in 2010. Thus, the debate intensified when the central body for decision- making on the provision of health services, the Federal Joint Committee (G- BA), began its assessment of NIPT in 2014, and decided to consider NIPT for public health care coverage in 2016. This committee continues a corporatist tradition of self- governance in the health sector and, under neutral chairmanship, assembles representatives from the statutory health insurance funds and health care providers, supplemented by patient represen- tatives without voting rights.26 After a 3- year assessment, it decided to include NIPT under health care services on a case- by- case basis.27 This regulation will enter into force as soon as a suitable information

 15For a focus on the academic discourse see e.g. Rubeis, G. (2018). Das Konzept der Eugenik in der ethischen Debatte um nicht- invasive Pränataltests (NIPT). In F. Steger, M. Orzechowski & M. Schochow (Eds.), Pränatalmedizin: Ethische, juristische und gesellschaftliche Aspekte (pp. 100– 125). Karl Alber; Rubeis, G., & Steger, F. (2019). A burden from birth? Non- invasive prenatal testing and the stigmatization of people with disabilities. Bioethics, 33(1), 91– 97.

 16Yanow, D. (2000). Conducting interpretative policy analysis. Sage University Papers Series on Qualitative Research Methods, Vol. 47. Sage; Münch, S. (2016). Interpretative Policy- Analyse. Eine Einführung. Springer VS.

 17Braun & Könninger, op. cit. note 1.

 18Büro für Technikfolgen- Abschätzung beim Deutschen Bundestag. (2019). Aktueller Stand und Entwicklungen der Pränataldiagnostik, ArbeitsberichtNr. 184, pp. 57– 60. https:// www.tab- beim- bunde stag.de/de/unter suchu ngen/u2081 0/ab184_Z.html

 19Gemeinsamer Bundesausschuss. (2019). Mutterschafts- Richtlinien. https://www.g- ba. de/richt linie n/19

 20Büro für Technikfolgen- Abschätzung beim Deutschen Bundestag, op. cit. note 18, pp. 49– 50, 198.

 21Ibid: 192.

 22Ibid: 57, 117.

 23Ibid: 43– 45.

 24Ibid: 93– 96.

 25Ibid: 70– 81: a decrease in births of children with Down syndrome is sometimes reported or inferred from the high(er) rates of detections and associated abortions, but cannot be statistically proven so far, as there has been a parallel increase in pregnancies with this condition due to higher maternal age.

 26Gemeinsamer Bundesausschuss. (2020). The Federal Joint Committee: Who we are and what we do. https://www.g- ba.de/engli sh/struc ture/

 27Gemeinsamer Bundesausschuss. (2019). Beschluss über eine Änderung der Mutterschafts- Richtlinien: Nicht- invasive Pränataldiagnostik zur Bestimmung des Risikos autosomaler Trisomien 13, 18 und 21 mittels eines molekulargenetischen Tests (NIPT) für die Anwendung bei Schwangerschaften mit besonderen Risiken. Bundesanzeiger, AT 20.12.2019 B6. https://www.g- ba.de/besch luess e/3955/

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brochure has been prepared, unless the Federal Ministry of Health, the monitoring authority, or Parliament intervenes.28

2.1 | The debate on market entry (2012– 2014)

As soon as it became foreseeable, the introduction of NIPT in the German market was opposed by some officials as well as civil society actors. It fed into a critical opposition to the extension of prenatal diagnosis that had developed from the late 1970s on. This opposition is heterogeneous and multi- layered.29 The driving forces are civil rights movements such as disability advocacy and some feminist in- dividuals, groups and networks that engage in issues of women’s health. There is also resistance from some Christian circles and insti- tutions, and from people with conservative views. They include a variety of actors, some of whom are groups committed to the ‘pro- tection of life’ and opposed to abortion in principle. Thus, many con- cerns and arguments that surfaced in the debate on NIPT were not completely new but a continuation of previous debates such as that on pre- implantation diagnosis and its legalization.30

When NIPT was introduced in Germany, identifying or associat- ing it with a selective and eugenic policy was one of the first and most prominent objections. The critique of selection was pushed forward by the former Federal Government Commissioner for Matters relating to Persons with Disabilities, Hubert Hüppe,31 to- gether with the State Coordinating Agency and the Advisory Council on Inclusion. These institutions were created to implement the UN Convention on the Rights of Persons with Disabilities, ratified by Germany in 2007. Based on a mandated legal opinion by Gärditz (2012), Professor of public law in Bonn, the Commissioner tried to prevent the introduction of NIPT to the free market. The legal opin- ion denying the legitimacy of NIPT was mainly based on the argu- ment that it is ‘a targeted instrument of selection’ and lacks any (therapeutic) medical purpose.32 It infringes several laws and basic rights, by discriminating against persons with disabilities. In this re- gard, Gärditz also uses the wording Aussondern, one of a group of terms closely associated with selection or selecting out (lives) such as Aussortierung or Auslesen.

This criticism was shared by many civil society activists, despite their different backgrounds. One of the most engaged groups with a feminist commitment, the Network Against Selection by Prenatal

Diagnosis (Netzwerk gegen Selektion durch Pränataldiagnostik), de- scribed the implementation of prenatal diagnosis since the 1970s as a stepwise expansion of technologies originally intended to be re- served for particular cases of hardship but that now threaten both people with disabilities and pregnant women who are enticed or pressured into using them. Going further than the legal opinion of Gärditz, they criticized NIPT as a ‘medical technological option for a new eugenics, apparently voluntary but in fact determined by social constraints’.33 They felt that the general public had never really re- flected on or endorsed the current state of prenatal testing and its possible extension by NIPT. In making this critique, the Network drew on an argument that had developed since the 1980s and is sometimes simply referred to as ‘the historical argument’.34 It claims a historical continuity between eugenic ideas, the agenda of ‘racial hygiene’ and the human genetics involved in prenatal diagnosis. Although eugenic policies are no longer officially propagated or en- forced by the central state ‘from above’, they are now transferred into a framework of seemingly free individual decisions that pro- duces ‘liberal’ eugenics ‘from below’. The close connection between selection and eugenics was also emphasized by the Christian Democrats for Life (Christdemokraten für das Leben e.V.), who pub- lished a statement entitled ‘Inclusion instead of selection – no strengthening of prenatal eugenics’, warning of ‘a new, prenatal eu- genics “from below” that can hardly be restricted’.35

These prompt interventions were echoed in the media and con- tributed to a public problematization of the introduction of NIPT.36 However, the relevant governmental district rejected a legal ban on NIPT.37 Moreover, its implementation was supported by others, such as the major family advocacy organization pro familia, which appre- ciated the test for allowing earlier examinations and self- determined decision- making about pregnancy, despite their concerns about neg- ative effects on perceptions of disability.38 But in neither case was the critique of selection or eugenics explicitly addressed. Only a legal expert report by public law Professor Hufen (2013),

 28Hecken, J. (2019): Schreiben von Prof. Josef Hecken, unparteiischer Vorsitzender des G- BA, an Mitglieder des Deutschen Bundestages zur Nichtvertagung der Beschlussfassung zu NIPT. https://www.g- ba.de/press e/press emitt eilun gen/810

 29Braun & Könninger, op. cit. note 1; Braun, op. cit. note 9; Zander, M. (2016). Behindertenbewegung, Feminismus, “Lebensschützer”. In Netzwerk gegen Selektion durch Pränataldiagnostik, Rundbrief 28 (pp. 5– 14). http://www.netzw erk- praen atald iagno stik.de/veroe ffent lichu ngen/rundb riefe.html

 30Eitz & Stötzel, op. cit. note 4, p. 562.

 31Hüppe, himself the father of a child with spina bifida, is also a leading member of the Christian Democrats for Life (Christdemokraten für das Leben e.V.).

 32Der Beauftragte der Bundesregierung für die Belange behinderter Menschen. (2012). Gutachtliche Stellungnahme zur Zulässigkeit des Diagnostikprodukts “PraenaTest”. Erstellt von Prof. Dr. Klaus Ferdinand Gärditz, p. 19; for Aussondern, see p. 10.

 33Netzwerk gegen Selektion durch Pränataldiagnostik. (2012). Neuer Bluttest droht die vorgeburtliche Selektion von Menschen mit Down- Syndrom zu perfektionieren. In Netzwerk gegen Selektion durch Pränataldiagnostik, Dokumentation der Netzwerktagung 2012. Inklusion nicht Selektion. Impulse aus der Behindertenrechtskonvention für die Arbeit des Netzwerks (pp. 42– 44), p. 44.

 34Waldschmidt, op. cit. note 7 (no page number).

 35Christdemokraten für das Leben e.V. (2012). Inklusion statt Selektion – Kein weiterer Ausbau pränataler Eugenik. https://cdl- online.net/pm- inklu sion- statt - selek tion- kein- weite rer- ausba u- prana taler - eugen ik/135

 36Sänger, E. (2013). Früher, sicherer, einfacher? Die Einführung des Bluttests auf Down- Syndrom im Spiegel der Printmedien. In Netzwerk gegen Selektion durch Pränataldiagnostik, Keine Angst vor grossen Fragen: Vorgeburtliche Diagnostik zwischen Ethik und Monetik. Rundbrief Nr. 26 (pp. 16– 23), p. 20; Büro für Technikfolgen- Abschätzung beim Deutschen Bundestag, op. cit. note 18, pp. 154– 155.

 37dapd Nachrichtenagentur. (2012, August 1). Umstrittener Bluttest auf Down- Syndrom kann eingeführt werden, t- online.de. https://www.t- online.de/leben/ famil ie/schwa ngers chaft/ id_58365 752/blutt est- auf- down- syndr om- kann- einge fuehr t- werden.html

 38pro familia NRW. (2012): Der neue PraenaTest – die vorgeburtliche Bestimmung der Trisomie 21 aus mütterlichem Blut. https://www.profa milia.de/angeb ote- vor- ort/nordr hein- westf alen/lande sverb and- nordr hein- westf alen/veroe ffent lichu ngen- des- pro- famil ia- lande sverb andes - nrw.html; the concerns refer to the initial focus of the test on Down syndrome and the possible message of such a ‘selective offer’ (p. 4). However, such wording is neither a clear reference to the selection critique nor was it used in the following statements.

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commissioned by the producer LifeCodexx AG, countered the refer- ence to ‘selection’ by criticizing it as a questionable overstatement.39 Apart from this reply, Braun and Könninger found that some NIPT producers had deliberately tried to avoid a ‘burning’ of the technol- ogy by ‘moving carefully and respectably, engaging in dialogue with interest groups and emphasizing the test’s medical purpose’ instead of ‘moving too fast’.40

Assigned by the German Federal Government to respond to the emerging controversy, the German Ethics Council commented on NIPT in its report on the ‘Future of genetic diagnosis’ in 2013.41 Half of the Council’s 26 members are appointed by the government and half by the parliament, the German Bundestag, but they are not al- lowed to hold active political mandates. They cover an interdisciplin- ary spectrum and are intended to be independent. The report’s general parts and two of the three position statements do not touch on the vocabulary of selection or eugenics in relation to prenatal testing in any critical way. The major statements recommend that the new NIPT should be conducted only ‘if there is an increased risk of a genetically conditioned disease or deformation’.42 Particular at- tention is also given to a possible undermining of the abortion law. Only the first dissenting statement, signed by four members, criti- cizes a ‘selective regard on the embryo’ (‘selektiven Blick auf den Embryo’) that leads to termination of the pregnancy,43 reflecting the above- mentioned opposition to prenatal testing as well as a critical discussion in the previous Council report on PGD in 2011.44 The sec- ond dissenting opinion by eight members emphasizes the reproduc- tive rights of women and criticizes the restrictive approaches, but again without addressing the selection critique.45

2.2 | The debate on health insurance coverage (2014– 2019)

The debate was brought to another level when the G- BA decided to evaluate the potential of NIPT as a new medical product (in 2014) and assessed it for inclusion under public health insurance (in 2016). Between these dates, a mixed group of parliamentarians took the opportunity to obtain information and responses to their concerns from their government, but again, phrasings such as ‘selection’ or

‘eugenics’ were not addressed. Instead, the concern raised was that covering NIPT would be a step towards making it routine.46

This concern was rejected by the government, who emphasized that NIPT was not considered to be ‘unconditional prenatal screen- ing’ for Down syndrome.47 In fact, the subsequent assessment by the G- BA was officially limited to the subsidizing of NIPT for triso- mies 13, 18 and 21 in the case of high- risk pregnancies, according to the Maternity Guidelines. These guidelines use the English term ‘screening’ as an equivalent for the German term ‘Reihenuntersuchung’, i.e. a serial examination without any specific indication.48 For instance, the basic ultrasound examination offered to every pregnant woman is classified as screening. By contrast, the G- BA suggested covering NIPT on a case- by- case basis, but explic- itly not as screening,49 deviating from the other common usage of the term ‘screening’ to distinguish probabilistic tests from diagnostic tests that provide definitive clarification. The need to consider the tests for funding was derived from the assumption that they may be preferable over the invasive tests already covered. Thus, NIPT was evaluated as an option for avoiding invasive testing (in the case of a negative result) and not, as in other countries, as an alternative or addition to prior first trimester screening already covered by health insurance.

This framing and use of language shaped the G- BA’s evaluation process and surfaced in the subsequent debate as well. The G- BA’s statutes require it to invite several relevant organizations to com- ment on the subject at hand. In addition, an open call for comments was published. Many stakeholders from professional organizations, companies and laboratories submitted statements, as did civil soci- ety organizations and individuals.50 Several of the papers submitted by the relevant medical associations welcomed the coverage of NIPT under certain conditions as an add- on to prenatal testing and thus not as screening in the absence of any medical indication. However, when the G- BA suggested offering NIPT when ‘it is necessary to en- able the pregnant woman to deal with her individual situation’, the medical professionals criticized the vague phrasing; they anticipated extensive use and described the G- BA’s approach as de facto imple- menting an ‘individualized serial examination’ (‘individualisierte Reihenuntersuchung’).51 Some other statements, mainly from a broader spectrum of organizations engaged in women’s health, re- peated the concerns already described regarding the strengthening

 39Hufen, F. (2013). Zur verfassungsrechtlichen Beurteilung frühzeitiger pränataler Diagnostik. Dargestellt am Beispiel des Diagnoseprodukts PraenaTest. Gutachten im Auftrag der Firma LifeCodexx AG, p. 29. https://lifec odexx.com/fuer- aerzt e/downl oad- center

 40Braun & Könninger, op. cit. note 1, p. 9.

 41Deutscher Ethikrat. (2013). The future of genetic diagnosis – from research to clinical practice. https://www.ethik rat.org/en/publi catio ns/kateg orie/opinions

 42Ibid: 165.

 43Ibid: 168; the translated version of the report deviates slightly from the German original in places.

 44Deutscher Ethikrat. (2011). Preimplantationgenetic diagnosis. Opinion, pp. 55– 56, 105ff. https://www.ethik rat.org/filea dmin/Publi katio nen/Stell ungna hmen/engli sch/ DER_Stn_PID_EN_Online.pdf

 45Deutscher Ethikrat, op. cit. note 41, pp. 170– 173.

 46For a complete documentation of the request and answer, see: Deutsche Bundesregierung. (2015). Antwort auf die Kleine Anfrage “Vorgeburtliche Blutuntersuchung zur Feststellung des Down- Syndroms”. Deutscher Bundestag, Drucksache 18/4574, p. 2.

 47Ibid: 7.

 48Gemeinsamer Bundesausschuss, op. cit. note 19, p. 31.

 49Gemeinsamer Bundesausschuss, op. cit. note 27; see also the G- BAʼs summarizing press release ‘Methodenbewertung: Nicht- invasiver Test zum Vorliegen von Trisomien als mögliche Alternative zu invasivem Eingriff’ (September 19, 2019). https://www.g- ba. de/press e/press emitt eilun gen- meldu ngen/810/

 50For a complete documentation of submitted statements, see: Gemeinsamer Bundesausschuss. (2019). Anlage zur Zusammenfassenden Dokumentation. https:// www.g- ba.de/besch luess e/3955

 51See the comments by the Deutsche Gesellschaft für Humangenetik and the Berufsverband niedergelassener Pränatalmediziner e. V. of May 5, 2019, in the G- BAʼs documents, ibid. (no page number).

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of selection, but also phrased their position within the frame ad- opted by the G- BA by opposing NIPT as ‘screening’, ‘general screen- ing’ or ‘serial examination’.52

2.3 | The related parliamentary debate and the G- BA’s concluding decision (2019)

Before publishing its decision, the G- BA waited for the German Bundestag to hold a debate on prenatal genetic blood tests on April 11, 2019.53 It soon became clear that many members of parliament (MPs), across all parties, have ambivalent views of NIPT but may be ready to support a limited coverage of it. The first speaker set the course for many subsequent statements from diverse parties. Claudia Schmidtke from the Christian Democrats (CDU), who is also the Federal Government’s patient representative, emphasized par- liament’s commitment to the principle of human dignity, the value of diversity, and the inviolable character of life; nonetheless, she wel- comed the blood test as a means to avoid the inherent risks of inva- sive testing.54 Many of the subsequent speakers who showed some support for NIPT emphasized that it should be covered only for a restricted group of women— usually those with high- risk pregnancies— but opposed implementing as ‘regular service’, ‘rou- tine’, ‘screening’ or ‘mass screening’.

One MP combined his support for a narrow restricted coverage (for high- risk pregnancies and only after the 12th week) with an explicit warning that general coverage could lead to a ‘general se- lection of the unborn’ or ‘a eugenic, discriminatory society’ (Stephan Pilsinger, CDU).55 He was the only speaker who explicitly referred to eugenics. Another MP from the CDU, Eckhard Gnodtke, referred to a similar statement that had been published by the Protestant Church in the run- up to the debate. It rejected NIPT as a standard service that might lead to ‘eugenic tendencies’ or possi- ble ‘early selection’. But provided better counselling is offered— a frequent call in the debate— it supported limited coverage.56 This was countered by the Catholic Church, who emphasized the need to protect unborn life.57

The other parliamentarians who identified or associated NIPT with selection or similar terms such as ‘sorting- out’ (‘Aussortierung’)

presented strong concerns about the technology. For instance, Corinna Rüffer from the Green Party stated: ‘Then what is the test for? It usually serves – let’s face it! – for selection.’58 This was fol- lowed by the feminist argument that women’s self- determination can easily be undermined by the expectation to test and by societal conditions that discourage having a child with a disability. Like other speakers in this group, she feared a slippery slope into further test- ing. Another speaker, Michael Brand from the Christian Democrats, appealed to the human right to life and finally asked dramatically ‘How much selection can humans bear?’59

However, it cannot be stated that similar wordings were clearly predominant among the more concerned or reluctant statements about NIPT. For instance, the most critical speakers from the Social Democrats turned to rationales, such as the need to protect wom- en’s right not to know and to provide a welcoming culture for all children, but did not talk of selection. Another speaker attacked par- ticularly medical notions of normality, illness and disability.60 But it was more common, not just among critical parties, to reject any (d) evaluation of lives, or to emphasize the fundamental meaning of the debate started, transcending the issue of coverage of NIPT. And in doing so, several MPs did not explicitly comment on coverage.

Finally, it is noteworthy that none of the members of parliament openly rejected the vocabulary of selection to describe the dangers of NIPT. If they supported some coverage, like the majority did, they simply pointed out the clear advantages over invasive testing, which is already covered, or made other arguments such as equal access or women’s right to self- determination (through knowing and making decisions about their pregnancy).

In the subsequent media reports, a majority of MPs were per- ceived to be supportive of restricted coverage of NIPT.61 Among the media responses a strong critique of the description of NIPT as se- lection was also given by a former member of the German Ethics Council and Professor of penal law and legal philosophy, Reinhard Merkel, who had supported the Council’s second dissenting and most permissive opinion. In an article (‘Selection? Nothing of the sort!’— ‘Von wegen Selektion’) he demanded that the public debate should be cleansed of discrediting and polemic terms that remind listeners of Auschwitz and associate their addressees with crimes against humanity.62

After the debate, the G- BA felt ready to finalize and publish its decision to adopt NIPT on a case- by- case basis (September 19, 2019).63 Requests to suspend a decision until a further, as yet un- scheduled debate, were rejected, based on the argument that the

 52See e.g. comments by the Diakonie Württemberg, Bundesvereinigung Lebenshilfe e.V., and Arbeitskreis Frauengesundheit, ibid. (no page number).

 53The debate was organized as an open debate for orientation purposes, without party order or legislative process. Thirty- six parliamentarians spoke and six written statements were submitted. Deutscher Bundestag. (2019). Tagesordnungspunkt 3: Vereinbarte Debatte: Vorgeburtliche genetische Bluttests, Plenarprotokoll 19/95, Stenografischer Bericht 195. Sitzung, 11315– 11339, 11506– 11509.

 54Ibid: 11315B.

 55Ibid: 11328A.

 56Ibid: 11507A; Evangelische Kirche in Deutschland. (2018): Nichtinvasive Pränataldiagnostik – Ein evangelischer Beitrag zur ethischen Urteilsbildung und zur politischen Gestaltung, p. 20. https://www.ekd.de/nicht invas ive- praen atald iagno stik- 37971.htm

 57Deutsche Bischofskonferenz. (2018, November 6). Diese Forderung der EKD teilen wir nicht. kath.net. http://kath.net/news/65777

 58Deutscher Bundestag, op. cit. note 53, p. 11319C.

 59Ibid: 11335C.

 60Ibid: 11330C; this was Markus Kurth from the Green Party.

 61dpa Deutsche Presse- Agentur. (2019, April 11). Bundestag unterstützt pränatale Bluttests als Kassenleistung, ZeitOnline. https://www.zeit.de/news/2019- 04/11/bunde stag- unter stuet zt- praen atale - blutt ests- als- kasse nleis tung- 19041 0- 99- 769884; Hofmann, K. (2019, April 11): Erste Debatte im Bundestag – Trisomie- Tests: Kleines Ja mit grossem Aber. ZDF heute. https://www.zdf.de/nachr ichte n/heute/ erste - debat te- im- bunde stag- ueber - triso mie- test- an- embry onen- als- kasse nleis tung- 100.html

 62Merkel, R. (2019, April 26). Von wegen Selektion. Frankfurter Allgemeine Zeitung, p. 9.

 63Gemeinsamer Bundesausschuss, op. cit. note 27.

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legislator is always in a position to revise the decision.64 Thus, the G- BA is now preparing the appropriate patient information. The G- BA’s decision has not caused any apparent upheaval in public report- ing or provoked new protests.65 Its vague phrasing was again criticized,66 but at least its emphasis on individual cases found some acceptance by concerned parties such as former Minister of Health, Social Democrat and chair of the major disability organization Bundesvereinigung Lebenshilfe e.V., Ulla Schmidt, whose critical comments on NIPT were often quoted in the media.67 The rules ad- opted, however, led to irritations among some of the prenatal physi- cians involved. They describe the decision reached as a political compromise that has lost touch with medical rationales and consti- tuted an internationally distinctive special path.68 However, leaving space for interpretation,69 it remains to be seen what the ruling ac- tually means in practice.

3  | REFLEC TIONS ON THE DEBATE

Below, I will concentrate on three related reflections. First, the ques- tion of whether we can find a characteristic pattern in the use of crit- ical terms from eugenics to selection and, as a further category, to screening. The second reflection concerns the meaning and signifi- cance of such a pattern for the historical dimensions of the German debate on prenatal genetic testing. The final reflection focuses on the conceptual strengths, weaknesses and difficulties that this use of language presents for further debate.

3.1 | Uses and non- uses of ‘eugenics’ and ‘selection’ and references to ‘screening’

The debates about NIPT demonstrate a frequent use of references to ‘selection’ or some associated terms by many critics of implemen- tation. These terms are more frequently used than explicit refer- ences to eugenics. The legal opinion by Gärditz, the critical dissenting statement by the German Ethics Council, and some of the parliamen- tarians who expressed most opposition in the debate, all pointed out

the selectivity involved in NIPT but did not mention eugenics. This indicates that the critical reference to selection or selecting out has some characteristics of its own. However, their historical connota- tion and content is barely addressed in the policy debate. Rather, ‘selection’ serves as a normative pivot to several critical arguments, ranging from eugenics to discrimination against people with disabili- ties and the pressure exerted on pregnant women to give birth to a ‘perfect’ child. Thus, in line with the maxim ‘inclusion instead of se- lection’, selection might be a more fitting term for addressing the concerns of many critics of NIPT. Although it can still be associated with Nazi selection or eugenic selection in a broader or updated sense, it can also suggest other critiques of selectivity, such as the presumption of choice or discrimination against those affected.70 Moreover, ‘selection’ might be easier for a broader audience to un- derstand than ‘eugenics’. Since the general use of ‘selection’ to de- scribe the process or result of a quality- oriented choice never really disappeared, and is also supported by the growing influence of the English language, its use appears more ‘natural’. For instance, the recent report on prenatal diagnosis by the German Office of Technology Assessment adopts the phrase in a few places (2019).71 It remains unclear whether it is used as a critical term, but it could be understood in this way by the readership. This also includes the ad- jectival use of the phrase when referring to ‘selective effects’ or, to take another example, ‘selective abortion’. In these cases, I suggest, the reference to Nazi selection is weakened, but not completely abandoned.

However, the German Ethics Council report and the discourse in Parliament both demonstrate an avoidance of the terms by the ma- jority of participants. Despite their concerns, neither the majority opinion of the Council nor the joint writings of parliamentarians from diverse parties make use of these terms. The same is true for the majority of individual statements that were ambivalent yet sup- ported health insurance coverage of NIPT— under certain conditions and restrictions. The few exceptions, two parliamentarians and the above- mentioned statement by the Protestant Church, problema- tized selection or eugenics not as an inherent part of NIPT, but as the possible result of a slippery slope development that can be pre- vented by careful implementation.72

Instead, the vast majority of representatives simply dropped the terminology completely, neither using it nor criticizing its usage. Considering the controversy surrounding these terms, I suggest this dropping is often deliberate avoidance. Several statements show a tendency to turn to ‘screening’ or ‘serial examination’ as terms of criticism. This is in line with the phrasing of the G- BA, who empha- sized that NIPT should not turn into screening. Within the concerned

 64Hecken, op. cit. note 28.

 65Witkofski, H. (2019, December 17). Der Protest muss wieder lauter werden!, Interview. Gen- ethisches Netzwerk e.V. https://www.gen- ethis ches- netzw erk.de/dezem ber- 2019/ der- prote st- muss- wiede r- laute r- werden

 66Rüffer, C. (2019, September 19). Debatte ist mit G- BA- Beschluss nicht beendet, press release. https://www.corin na- rueff er.de/pm- debat te- ist- mit- g- ba- besch luss- nicht - beendet

 67Deutsches Ärzteblatt. (2019, September 19). Nichtinvasive molekular genetische Tests werden in bestimmten Fällen Regelleistung. https://www.aerzt eblatt.de/nachr ichte n/10613 0/Nicht invas ive- molek ularg eneti sche- Tests - werde n- in- besti mmten - Faell en- Regel leistung

 68Scharf, A., Maul, H., Frenzel, J., Doubek, K., & Kohlschmidt, N. (2019). Postfaktische Zeiten: Einführung von NIPT als Kassenleistung. Eine vorläufige Bilanz. Frauenarzt, 12(19), 778– 782.

 69Rehmann- Sutter, C., & Schües, C. (2020). Die NIPT- Entscheidung des G- BA. Eine ethische Analyse. Ethik in der Medizin, 32, 385– 403. https://doi.org/10.1007/s0048 1- 020- 00592 - 0

 70Birnbacher, D. (2006). Selektion von Nachkommen. In D. Birnbacher (Ed.), Bioethik zwischen Natur und Interesse (pp. 315– 353). Suhrkamp.

 71Büro für Technikfolgen- Abschätzung beim Deutschen Bundestag, op. cit. note 18, e.g. pp. 31– 32, 155.

 72For an overview of argumentation types, see: Schmuhl, H.- W. (2000). Nationalsozialismus als Argument im aktuellen Medizinethik- Diskurs. Eine Zwischenbilanz. In A. Frewer & C. Eickhoff (Eds.), „Euthanasie“ und die aktuelle Sterbehilfe- Debatte. Die historischen Hintergründe medizinischer Ethik (pp. 385– 407). Campus.

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statements on NIPT, the language of avoiding prenatal screen- ing seems most generally acceptable. In the German context, this English expression is also used as a technical term, but is not as (his- torically) burdened as ‘selection’.

3.2 | Distancing from historical reasoning?

Avoiding ‘selection’ as a historically burdened key term blanks out cer- tain historical references. Does this imply a distancing from historical reasoning in the German debate? Every debate, key term and argu- ment has its own historical dimensions. They often remain implicit or even, to some degree, undetermined. Thus, speaking of historical rea- soning in contrast to non- historical reasoning requires some explana- tion. Simon73 suggested distinguishing between at least three ways that historical reasoning can take place: as an explicit and constitutive reference within an argument; in an implicit way, for instance, by using an ambiguous term; and marginally, as an addition to or illustration of a freestanding argumentation. To varying degrees, the argument, criti- cism or objection cannot be fully understood or evaluated without the historical background. According to this typology, the historical refer- ences to selection used in the policy statements on NIPT analysed usually remained implicit and thus, to some degree, undetermined. Similarly, they were also rarely countered explicitly.

However, one can hardly expect condensed policy statements to be spelled out like scholarly works, and some of their authors may refer to previous publications and debates to justify their wording or criti- cism. Moreover, the implicit historical dimensions of reasoning are not only shaped by ambiguous terms but may also interact with a frame- work that has largely been constituted by historical concerns. This can be said for Germany’s historical responsibility, referring to the atroci- ties of the Nazi era in combination with the principle of retrospective responsibility. But it is also important for understanding the German Basic Law and the significance of its basic principle, the protection of human dignity, which itself is a reaction to the Nazi regime.74 This framework is not closed but open to reinterpretation in the light of new guiding principles such as inclusion and diversity. They amplify a nor- mative and evaluative framework that can easily be activated without articulating its historical dimension. For instance, the first speaker opened the parliamentary debate by stating that the conviction that it is the variety, surprise and imperfectness of life that make it worth liv- ing is not a matter of faith, but ‘in this House an obligation’ and declared by the Basic Law.75 Both positive commitments and negative terms

such as ‘unworthy of living’ or ‘selection’ address historical experiences and the (counter- ) reactions to which they gave rise.76 However, this does not necessarily mean that the comparisons evoked by such word- ings are always convincing. I suggest that refraining from the use of such wordings in today’s prenatal genetic testing implies refraining from a certain way of interpreting our historical heritage, but not nec- essarily rejecting its overall framework with its commitment to dignity, inclusion and diversity. Instead, a strong twofold commitment to the guiding principles of inclusion and diversity as well as to the individual concerns that prenatal testing enables may explain the need to find a term to articulate a negative distancing that serves both. And such a term might be ‘screening’.

3.3 | Orienting considerations for further debate

This article is not the place to revisit the discussion of whether the use of ‘eugenics’ or ‘selection’ is justified in terms of the historical or ideological continuities involved in or reintroduced by prenatal test- ing and NIPT.77 Instead, I want to conclude with some reflections on recently witnessed uses of the terms.

In this essay, I have indicated that the use of these categories in the debates on prenatal testing and NIPT is controversial and has led to a call for them to be dropped.78 However, although ‘eugenics’ and ‘selection’ might be (mis)used as polemic or stigmatizing expressions, they should not be reduced to this. Avoiding selection and eugenics should be regarded as a central part of the German post- war moral identity, and its meaning and relevance must be kept alive. This in- cludes, of course, critical observation of the societal field of repro- duction in and beyond Germany.79

Nonetheless, using these terms— to criticize current implementation— clearly shows a problematic ambivalence, in particular within the feminist movement, since this critique can easily be under- stood as blaming women who are willing to abort a foetus with a disabil- ity, not to mention the partners and professionals involved. Although some who argue this way emphasize that they want to criticize the framework that leads to the accumulation of certain decisions and not the individuals who make them or are being manipulated into them, i.e. selection on the level of societal practices and not on the level of indi- vidual decisions, others openly blame (intended) parents. This became particularly evident in the media reporting on NIPT.80 For instance, an article published in the German newspaper taz refers to parents as ‘selectors’ and ‘private eugenicists’ and blames them strongly in this

 73Simon, E.- C. (2004). Geschichte als Argument in der Medizinethik: Die Bezugnahme auf die Zeit des Nationalsozialismus im internationalen Diskurs (1980– 1994). Giessen: dissertation for the degree of Doctor of Medicine (Human Biology) of the Faculty of Medicine of the Justus Liebig University Giessen, published online, pp. 55, 161. http://geb.uni- giessen. de/geb/volltexte/2005/2305/

 74Enquete- Kommission “Recht und Ethik der modernen Medizin”, op. cit. note 6.

 75Deutscher Bundestag, op. cit. note 53, p. 11315B; this was Schmidtke with her already mentioned speech. Similarly, Kirsten Kappert- Gonther from the Green Party referred to the example of Iceland: the standard case there of preventing the births of children with Down syndrome ‘must never become normal in Germany’ (Deutscher Bundestag, op. cit. note 53, p. 11323B).

 76Hashiloni- Dolev, Y. (2007). A life (un)worthy of living: Reproductive genetics in Israel and Germany. Springer; Hashiloni- Dolev, Y., & Raz, A. E. (2010). Between social hypocrisy and social responsibility: Professional views of eugenics, disability and repro- genetics in Germany and Israel. New Genetics and Society, 29(1), 87– 102.

 77Schultz, op. cit. note 8; Ach, J. S. (2006). Das “Eugenik- Argument” in der bioethischen Diskussion. In G. Pfleiderer & C. Rehmann- Sutter (Eds.), Zur Bedeutung der Temporalität in der Fundamental- und Bioethik (pp. 217– 233). Kohlhammer. Rubeis, op. cit. note 15.

 78Merkel, op. cit. note 62.

 79Kröner, op. cit. note 5, pp. 142– 143.

 80Sänger, op. cit. note 36, p. 21; Büro für Technikfolgen- Abschätzung beim Deutschen Bundestag, op cit. note 18, p. 154.

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way.81 Or when the minority opinion from the German Ethics Council described a ‘selective regard on the embryo’ in a way reminiscent of the selective gaze of a concentration camp physician at worst. It is no sur- prise that such interpretations can offend and polarize.

Another ambivalence concerns the emphasis of these expressions. The more they are linked to the Nazi atrocities, the more they indicate something so evil that it cannot be detached from blame and resistance. A practice that seriously resembles Nazi selection is indisputably unac- ceptable. However, the critical use of these phrases is based on similari- ties and continuities, which are a matter of transformation and degree. A statement such as ‘how much selection can humans bear?’ cannot seri- ously be referring to Nazi selection, but only to selectivity of a different kind, which might depend on its aim or scope. Thus, we might find our- selves in a situation where many of the participants involved in the de- bate know that the critique of selection and eugenics is used in a variable way: some genuinely use them to draw strong parallels with or to stigma- tize the users of prenatal testing; others use them in a more flexible way to problematize developments; some accept or tolerate such mitigated use although they do not share it; but others feel really offended and demonized by any such use, or pretend they are. Both kinds of ambiva- lence towards the addressee and the intensity of the critique, as well as the respective reactions and countercriticism, may explain why many participants in the debate on NIPT appear to avoid using the terms. They are either not convinced by them or they are avoiding confrontation.82

This might explain why the term ‘selection’ was not used in cross- party statements, nor criticized by participants of the parliamentary debate. Instead, and in line with the wording of the G- BA, ‘preventing screening’ might be the more convenient demarcating phrase for peo- ple holding more moderate positions. It is primarily associated with a systematic search on the societal level and does not blame individuals; although one could say that a pregnant woman ‘screens’ her blood, foe- tus or baby, this does not imply that she is at that point selecting against a certain disability; the same is true for the critical talk of ‘individualized serial examination’ brought up by some of the medical associations commenting in the G- BA evaluation. Moreover, the phrase does not invite controversy about the correct use of historical categories and experiences. Nonetheless, ‘screening’ can have resonances with ‘selec- tion’ because it is a technical term, and ‘screen(ing) out’ closely resem- bles ‘selecting out’ or the German ‘aussortieren’ (see the ‘Don’t Screen Us Out’ campaign by British Down syndrome advocacy groups). However, the pejorative use of ‘screening’ could have its own side ef- fects. Many other broadly accepted or broadly used methods such as basic ultrasound examinations are also classified as screening, and so are (following the other meaning of the term) probabilistic tests; thus, a negative connotation of ‘screening’ could have a spillover effect, lead to confusion and misunderstanding or remain contextual and limited by the acceptance of screening methods such as ultrasound. In any case, it suggests further need for clarification, for instance, by always

indicating whether one is talking about screening as a technical feature in the sense of non- diagnostic testing or as implementation on an indi- vidual, general, or large- scale level. This might not only be essential to deal with the concerns of the German debate; understanding why this national debate involves particular sensitivities towards terms such as ‘selection’ or ‘screening’ can also stimulate more international reflec- tions on prenatal testing, not as hypersensitivity but as a historically sharpened awareness of the different implications and interpretations of terms and what they can stand for in prenatal care.83

To conclude: the German implementation of NIPT has been ac- companied by major controversy about its advantages or negative implications. The evaluation process by the G- BA led to the adoption of NIPT on a case- by- case basis, as opposed to (general) screening or via the application of some defined risk criteria. This result— together with the fact that German health insurance has never adopted first trimester screening— has been perceived as a distinctive pathway, based more on political and ethical reasoning than medical consid- erations. It reflects both support for prenatal genetic testing and criticism of it. This criticism is underpinned by a strong need to dis- tance ourselves from the practices of the Nazi past, and to provide a positive countermodel. It is addressed by the use of guiding prin- ciples such as inclusion, diversity and self- determination, but also of negative key terms such as ‘eugenics’ and ‘selection’. However, these two terms might be too polarizing for use in negotiating the regula- tion of prenatal testing. Thus, preventing prenatal screening could be a more convenient negative delimitation phrase in the German debate on prenatal genetic testing. The historical background might not only shape the current German pathway of prenatal testing, but also produce a certain linguistic sensitivity when deliberating it.

ACKNOWLEDG EMENTS This article is part of the research project ‘Meanings and Practices of Prenatal Genetics in Germany and Israel (PreGGI)’. I am grateful for the funding from the German Research Foundation (DFG) and would like to thank the members of the project. I thank Christina Schües and Christoph Rehmann- Sutter for helpful comments on the manuscript and Monica Buckland and Jackie Leach Scully for their thorough language editing. I also thank the two anonymous reviewers for their valuable feedback and the participants of the symposium ‘Bioethics and the Legacy of the Holocaust’ (May 13– 17, 2019, Berlin), organised by Silke Schicktanz and Heiko Stoff, for fruitful discussion of preliminary ideas for this article.

CONFLIC T OF INTERE S T This article is written as part of the research project ‘Meanings and Practices of Prenatal Genetics in Germany and Israel (PreGGI)’, funded by the third party German Research Foundation (DFG). My position within the project is located at the Institute for History of Medicine and Science Studies, University of Lübeck, Germany. The other involved uni- versity is the Ben- Gurion University of the Negev, Be’er Sheva, Israel.

Apart from this background, I have no conflicts of interest to declare. 81Thieme, M. (2016, November 28): Eltern als Selektierer. Debatte Pränataltests und ihre

Folgen, taz, die tageszeitung. https://taz.de/Debat te- Praen atalt ests- und- ihre- Folge n/!5357522

 82See also Hashiloni- Dolev & Raz, op. cit. note 76, p. 98.  83For a similar thought, see: Wiesing, op. cit. note 9, p. 153.

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ORCID Hannes Foth https://orcid.org/0000-0003-0070-0739

AUTHOR BIOG R APHY

Hannes FotH is working at the Institute for History of Medicine and Science Studies, University of Lübeck, Germany, and is a member of the DFG- project “Meanings and Practices of Prenatal Genetics in Germany and Israel (PreGGI)”. He received a bach- elor’s degree in Philosophy (major) and Politics (minor subject) and a master’s degree in Philosophy from the Heinrich- Heine- University Düsseldorf, Germany. He has completed his doctoral dissertation in Philosophy. His current research focuses on the social philosophy, (bio)ethics and politics of family relations in the context of social and biomedical change.

How to cite this article: Foth H. Avoiding ‘selection’?— References to history in current German policy debates about non- invasive prenatal testing. Bioethics. 2021;35:518– 527. https://doi.org/10.1111/bioe.12880

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