Regional Court Frankfurt a.M.: Cryobank must release sperm for post-mortem fertilisation

Background

In a recent decision dated 4 February 2025 (case no. 4 O 29/25), the Regional Court Frankfurt am Main the obligation of a cryobank to Release of cryopreserved sperm on post-mortem artificial fertilisation. The decision is caught between the German Embryo Protection Act (ESchG) and European legal reality.

The case

A married couple planned medically assisted fertilisation to fulfil their desire to have children. Due to the husband's cancer, sperm was cryopreserved in advance. After the husband's death, the wife - and sole heir in the will - demanded that the sperm be returned for use in a Spanish fertility clinic. In Spain, such use is permitted within one year of the donor's death.

The cryobank refused to hand over the material, citing Section 4 para. 1 no. 3 ESchG, according to which the use of gametes after death is not permitted in Germany. In addition, the contract expressly provided for the destruction of the material after death.

The decision

The regional court clarified: The Wife can assert a claim for restitution as heiresswhen a express or implied consent of the deceased for post-mortem use. The court considered the circumstances - in particular the wife's affidavit about their joint desire to have children - to be sufficient proof of implied consent.

• 4 ESchG should, in the opinion of the court, primarily Right to self-determination The aim is to protect the parties involved, not to criminalise post-mortem use across the board. As the planned fertilisation abroad is legally permissible, the national threat of punishment does not stand in the way of disclosure.

Significance for practice

This decision deviates from the previously strict interpretation of the Munich Higher Regional Court, for example, and strengthens the Right to self-determination of couples who wish to have children. She makes it clear:

• One express or implied consent is required - merely "presumed" consent is not sufficient.
• The planned use abroad can permissible even if it were not permitted in Germany.
• The scope of protection of the ESchG is not opened in every caseespecially if there is no criminal offence.

Conclusion

The legal situation regarding the post-mortem use of gametes remains complex and highly dependent on the individual case. However, this decision shows that with clever legal planning and clear documentation of their shared desire to have children, couples can make provisions - even after death.