Abortion in Germany
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Abortion in Germany is illegal under Section 218 of the German criminal code but simultaneously decriminalized under Section 218a of the German criminal code called Exception to liability for abortion, in the first trimester upon condition of mandatory counseling, and is also permitted later in pregnancy in cases of medical necessity. In both cases, a waiting period of three days is required. The counseling, called Schwangerschaftskonfliktberatung ("pregnancy-conflict counseling"), must take place at a state-approved centre, which afterwards gives the applicant a Beratungsschein ("certificate of counseling").
German abortion legislation was first codified in sections 181 and 182 of the Penal Code for Prussia (1851), which formed the basis for the Penal Code (Strafgesetzbuch) of the North German Federation (1870). On 15 May 1871, following the Proclamation of the German Empire, the latter code was incorporated into paragraphs 218-220 of the Penal Code for the German Reich, taking effect on 1 January 1872. Section 218 outlawed abortion, requiring a penal term for both the woman and the doctor involved. Legalization of abortion was first widely discussed in Germany during the early 20th century. During the Weimar Republic, such discussion led to a reduction in the maximum penalty for abortion, and in 1926 a court's decision -similar to the UK’s ’’R v Bourne’’ - decriminalized abortion in cases of grave danger to the life of the mother. Nazi Germany's eugenics laws severely punished abortion for Aryan women, but permitted abortion on wider and more explicit grounds than before if the fetus was believed to be deformed or disabled or if termination otherwise was deemed desirable on eugenic grounds, such as the child or either parent suspected of being carrier of a genetic disease.
During World War II, anti-abortion laws were increased again, and it became a capital offense. In 1943, a law was passed making it punishable by death to provide a German woman with an abortion. Non-Aryan women meanwhile were often "encouraged" to utilize contraception and abortion in order to reduce their populations.
After World War II, abortion remained broadly illegal throughout both Germanys: West Germany retained the legal situation of 1927, while East Germany passed a slightly more encompassing set of exceptions in 1950. The legal requirements in the West were extremely strict, and often led women to seek abortions elsewhere, particularly in the Netherlands. It has been estimated that about 2 million women had abortions each year between 1945 and 1948, mostly in the Soviet zone. An abortion cost around 1000 marks and was performed without anaesthesia. 6000 Berlin women died each year in the Soviet zone from resulting complications.
On 6 June 1971, the cover of the West German magazine Stern ran with the headline We've had abortions! (German: Wir haben abgetrieben!), and featured the pictures of 30 women who had done so. 374 women, some, but not all, of whom had a high public profile, publicly confessed that they had had pregnancies terminated, which at that time was illegal. They challenged §218 and asserted their right to abortion.
East Germany legalized abortion on demand until 12 weeks of pregnancy in 1972, in the Volkskammer's only non-unanimous vote ever in the first 40 years of its existence. After West Germany followed suit in 1974, its new law was struck down in 1975 by the Constitutional Court as inconsistent with the human rights guarantee of the constitution. It held that the unborn has a right to life, that abortion is an act of killing, and that the fetus deserves legal protection throughout its development. Nevertheless, the legal opinion strongly hinted that increasing the number of situations in which abortion was legal might be constitutional.
In 1976, West Germany revised abortion law. According to the new modifications to §218, penalties for abortions are not enforced on doctors and patients when several conditions are met: terminations must be no later than twelve weeks of pregnancy — or must be performed for reasons of medical necessity, sexual crimes, or serious social or emotional distress — if approved by two doctors, and subject to counseling and a three-day waiting period. In 1989, a Bavarian doctor was sentenced to two and a half years in prison, and 137 of his patients were fined for failing to meet the certification requirements.
The two laws had to be reconciled after reunification. A new law was passed by the Bundestag in 1992, permitting first-trimester abortions on demand, subject to counseling and a three-day waiting period, and permitting late-term abortions when the physical or psychological health of the woman is seriously threatened. The law was quickly challenged in court by a number of individuals — including Chancellor Helmut Kohl — and by the State of Bavaria. The Constitutional Court decided a year later to maintain its earlier decision that the constitution protected the fetus from the moment of conception, but stated that it is within the discretion of parliament not to punish abortion in the first trimester, provided that the woman had submitted to state-regulated counseling intended to discourage termination and protect fetal life. Parliament passed such a law in 1995. Abortions are covered by public health insurance if the pregnancy was caused by sexual abuse, such as rape, or if the mother's health is seriously endangered by the pregnancy. For women with low income, the state governments pay for an abortion.
- "Strafgesetzbuch (StGB) §218-219" (in German). buzer.de. Retrieved 2019-09-30.
- "German Criminal Code". Federal Ministry of Justice and Consumer Protection. 2013-10-10. Retrieved 2019-09-30.
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- Henry P. David, Jochen Fleischhacker and Charlotte Hohn (March 1988). "Abortion and Eugenics in Nazi Germany". Population and Development Review. 14 (1): 81-112. doi:10.2307/1972501. JSTOR 1972501.
- Ferree, Myra Marx (2002). Shaping abortion discourse: democracy and the public sphere in Germany and the United States. Cambridge University Press.
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- "Abortion and Women's Legal Personhood in Germany 1991". Review of Law and Social Change. 1991. Retrieved 12 March 2017.
- Richie, Alexandra (1998). Faust's Metropolis. New York: Carroll & Graf. p. 617. ISBN 0-7867-0510-8.
- "Stern 6 June 1971 (the cover)".
- Thomas Grossbölting (2013). Der verlorene Himmel: Glaube in Deutschland seit 1945. Vandenhoeck & Ruprecht, Göttingen. ISBN 978-3-525-30040-4.
- "Schwangerschaftsabbruch". AOK. Retrieved 5 September 2017.
- (in German) Texts of §218 and §218a, published by the Federal Ministry of Justice in cooperation with a federally controlled commercial legal information provider.
- (in English) Translation of §218 ff., published by the Federal Ministry of Justice in cooperation with a federally controlled commercial legal information provider.