Explaining restrictive ART policies in Switzerland and Germany: similar processes - similar results?

VerfasserRothmayr, Christine
PostenAssisted reproductive technology
  1. Introduction (1)

    The issue of assisted reproductive technology (ART) made its way on the political agenda in Switzerland and Germany in the early 1980s. Since then, both countries have adopted several pieces of legislation, first addressing questions related to in vitro fertilization and, more recently, regulating embryonic stem cell research. Both countries adopted very restrictive policies and strongly intervened into the field of (ART) (see Rothmayr and Serdult 2004, Rothmayr and Ramjoue 2004). As a result, doctors in both countries are not allowed to practice a considerable number of techniques permitted in other countries, such as preimplantation diagnosis or egg donation, and researchers are not permitted to practice therapeutic cloning or embryo research. A detailed comparison of the two countries shows that the goals, instruments and implementers differ somewhat, but that the policies in both cases operate with strong prohibitions and sanctions. Hence, we could speak of a similar policy style in both countries.

    By taking the 'institution matter' hypotheses seriously, we could speculate that common institutional features might explain this similar policy style. Both countries are known for the consensual characteristics of their political system (Lijphart 1999). The institutional configuration, however, is different. Germany knows a parliamentary system (e.g. Schmidt 2003) and Switzerland combines direct democracy with a "directorial" governmental system (see e.g. Linder 1994, Kriesi 1998, Papodopoulos 2001). In addition, even though both countries systems might be characterized as functional federalism, there are important differences with respect to the power of the federated entities and their mode of participation on the federal level (e.g. Braun 2003). Despite these specific differences in institutional features, we can formulate the starting hypothesis that the consensual style of decision-making might contribute to explaining the convergence in policy content across the two countries.

    However, one cannot explain policy choices by looking at institutional features alone (e.g. Scharpf 1997, Hammond and Butler 2003: 145); actor-based variables need to be taken into account as well. The policy-sector approach even goes one step further and argues, that "... policymaking in a particular sector will exhibit strong similarities, whatever its national context." (Freeman 1986: 485-486) Based on Lowi's idea of "policy determines politics" we could suppose that the nature of the policy problem leads to a similar actor constellation and a similar nature of conflicts in both countries. We could, therefore, as a second and competing starting hypothesis suppose that the policy style both countries have in common is mainly the result of similarities in actor structure and the nature of conflict.

    Finally, the analysis of Swiss policy-making in general reveals that-besides the pressure of European integration -the solutions adopted by the two big neighbors France and Germany are often taken into account when discussing Swiss solutions. Even though Switzerland might occasionally be a forerunner in terms of policy innovation, other countries have often already addressed the problem, due to the rather slow process of decision-making in Switzerland, in particular if direct democratic decisions are involved, which was also the case with ART. We could therefore formulate a third hypothesis, namely that the similar policy style is the result of policy transfer mechanism (Dolowitz and Marsh 2000), i.e. that the similar Swiss policies result from "lesson drawing" from the neighbor to the north.

    In order to discuss which of these three factors has the most explanatory power, the presentation of the two cases is organized as follows: first, we give a brief overview over the different stages of the decision-making processes in both countries since the beginning of the 1980s, then, the resulting policies of both countries are compared in order to reveal the similarities in terms of policy style. After the comparison of the policy content, we offer an explanation for the policy choices in each country. The article concludes by comparing the explanations for the two countries and addressing the three starting hypotheses.

  2. The Policy-Making Processes in Switzerland and Germany: an Overview

    The policy-making processes in Switzerland and Germany both involve several sequences of decisionmaking focusing on different issues related to assisted reproductive technologies. A first generation of policies addressed in vitro fertilization and related questions, while the second-generation focused on stem cell research. In both countries, the issue was addressed on the federal and federated level, i.e. by the Lander in Germany and the Cantons in Switzerland, and the federal constitution needed to be amended in order to transfer the power to regulate ART to the federal level.

    In Switzerland, the policy-making process for the first generation of policies began at the cantonal level. In the 1980s, ten out of 26 cantons had adopted cantonal laws and regulations (2). The measures adopted by the cantons were later replaced by federal policies. The shift from the cantonal to the federal level was substantiated by a popular initiative, entitled 'Against the abuse of biotechnology and assisted reproductive technology' (Beobachterinitiative). If an initiative is filed with more than the 100,000 required signatures and meets other formal and legal requirements, the Federal Council (executive) is obliged to present it to Parliament and, finally, to the people. Government and Parliament can recommend the acceptance or rejection of an initiative, but can also propose a counter-proposal that addresses the issue of the initiative. The counter-proposal can take the form of a constitutional article (direct counterproposal) or a federal law (indirect-counter proposal). If the counter-proposal lives up to the principal intention of the initiative committee, it is quite likely that the committee will withdraw the initiative and the popular vote will only be on the counter-proposal, in the case of a direct counterproposal (3). This was in fact the case for the first popular initiative on ART and biotechnology. The Federal Council proposed a direct counter-proposal, in the form of a constitutional article on ART and biotechnology, to Parliament. As a result of the decisions taken by Parliament, the initiative was retracted and, in 1992, the Swiss citizens accepted the counter-proposal in the subsequent popular vote. On the ground of this constitutional article on ART and biotechnology, a federal law and two ordinances were designed during the 1990s (FmedG: SR: 814.90, VNEK: SR 814.903, FMedV: SR 814.902.2). The designing of the law was influenced by a second popular initiative, 'Initiative for Procreation respecting Human Dignity' (Initiative fur menschenwurdige Fortpflanzung) sponsored by opponents of the 1992 constitutional amendment. It aimed at reversing the constitutional amendment of 1992 by fully prohibiting IVF and insemination by donor. This time, the Federal Council did not make a direct counter-proposal (Botschaft vom 26. Juli 1996), but proposed a federal law on the ground of the existing constitutional article as an indirect counterproposal. Parliament adopted in December 1998, after a very conflictual debate, the Federal Law on Assisted Reproduction. In 2000, the people rejected the second popular initiative with a clear majority.

    The German policy-making process began with the elaboration of the Embryo Protection Law (EschG). Since 1985 the "Berufsordnung" (professional code) of the "Bundesarztekammer" (German Medical Association) regulated ART in Germany (Bundesartzekammer 1985, 1988, 1998). When the medical profession adopted their guidelines, a joint expert group of the Federal Ministry of Justice and the Federal Ministry of Research and Technology, the Benda-Commission, published the first proposition for regulating ART (Benda-Report 1985: 1, 4951). This report led to a first proposition of the Ministry of Justice for discussing the adoption of an Embryo Protection Law in 1986 (Bundesminister der Justiz 1986). While the government was elaborating a first draft for the EschG, the Lander did not remain inactive. Given that the Lander are important players in health care provision and the supervision of the medical profession, several Lander started to elaborate propositions for state laws from 1985 onwards, namely Bavaria and Rhineland-Palatine, where the Christian-Democrats were in power. However, these bills were never adopted (Abschlussbericht Bund-Lander-Arbeitsgruppe 1988). At the same time the Lander became active in the Bundesrat (upper chamber). At the initiative of Baden-Wurttemberg and Bavaria, and after being discussed in various committees, the Bundesrat decided that the Lander together with the Bund needed to elaborate a comprehensive concept for legislation in the field (BR-Drs. 210/86). This decision led to the institution of a common working group of the Federal government and the states (Bund-Lander Arbeitsgruppe). Shortly after the publication of the Bund-Lander working group's report (Abschlussbericht Bund-Lander-Arbeitsgruppe 1988), the ministry of justice elaborated a second proposition for an Embryo Protection Law (Bundesminister der Justiz 1988). Its content corresponded to the bill introduced to Parliament in 1989. Given its clear majority in the Bundestag, the governmental coalition passed the bill with no difficulties against the votes of the opposition. In contrast to the Swiss case, the German constitution was only amended after the adoption of the EschG, in 1994. The necessary qualified majority of 2/3 in both chambers could only be reached after the issue was off the political agenda. The EschG, therefore, is formulated in terms of criminal law, which is of federal matter.

    In both countries...

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