BGH: Ban in Germany affects the obligation to perform
Even private health insurers do not have to bear the costs of artificial insemination using egg donation. This was decided on Wednesday, June 14, 2017, by the Federal Court of Justice (BGH) (Az .: IV ZR 141/16). As justification, the Karlsruhe judges stated that the contractual terms usually stipulated the validity of German law. This means that the insurer only has to pay for treatments that are permitted in Germany under German law.
The BGH thus rejected a woman from Bavaria. At first she was childless. Because egg donation is prohibited in Germany, she went to a center for artificial insemination in the Czech Republic in 2012. After several attempts, artificial fertilization with donor egg cells was successful. The woman had such a child.
She asked her private health insurance company to reimburse the costs of around 11,000 euros. The insurance company refused.
Like the Munich Higher Regional Court, the BGH now also agreed with the insurer. The insurance contract was based on the model conditions of German private health insurers. These stipulated that German law applies to the contract and that the scope of the services is based, among other things, on the German legal requirements.
This should be interpreted in such a way that the private health insurer "only has to reimburse expenses for such curative treatments that are permitted in Germany under German law", the BGH judged. The insurance coverage also extends to other European countries. However, this means the geographical scope "and does not mean that the insurer has to reimburse expenses for treatments that are prohibited in Germany but permitted in other European countries".
According to the Embryo Protection Act, egg donation is prohibited in Germany. There is therefore no obligation to pay for private health insurance. The fact that egg donations are allowed in the Czech Republic does not change this.
The Karlsruhe judges admitted that this means a restriction of the EU legal freedom to provide services. However, because of the protective purpose of the regulation, this is justified.
In 2015, however, the BGH decided that Czech doctors in Germany were allowed to promote egg donation in the Czech Republic (judgment of October 8, 2015, file number: I ZR 225/13; JurAgentur report from the following day). mwo