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Abortion in Germany is illegal except to save the life of the mother but is nonpunishable during the first 12 weeks of pregnancy upon condition of mandatory counseling. The same goes later in pregnancy in cases that the pregnancy poses an important danger to the physical or mental health of the pregnant woman. In the case that the abortion is because of a rape, counseling is not mandatory. The woman needs to receive counseling, calledSchwangerschaftskonfliktberatung ("pregnancy-conflict counseling"), at least three days prior to the abortion and must take place at a state-approved centre, which afterwards gives the applicant aBeratungsschein ("certificate of counseling").
Doctors provide medication to cause the abortion, and observe to ensure there are no negative reactions to the medication.
Abortion legislation was codified in item 133 of theConstitutio Criminalis Carolina (1532). Later were particular laws in Germany, e.g. inPrussia part 2 title 20 section 986-990 ofGeneral State Laws for the Prussian States (1794). 1851 it was codified in sections 181 and 182 of the Penal Code for Prussia, which formed the basis for the Penal Code of theNorth German Federation (1870).[1] On 15 May 1871, following theProclamation of the German Empire, the latter code was incorporated into sections 218–220 of the Penal Code for the German Reich (Strafgesetzbuch), taking effect on 1 January 1872. Section 218 outlawed abortion, requiring a penal term for the woman and any involved person. Legalization of abortion was first widely discussed in Germany during the early 20th century. During theWeimar Republic, such discussion led 1926 to a reduction in the penalty for abortion, and in 1927 a court's decision – similar to the United Kingdom decisionR vBourne – decriminalized abortion in cases of grave danger to the life of the mother.
Nazi Germany's eugenics laws severely punished abortion for women belonging to the "Aryan race", 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 oneugenic grounds, such as the child or either parent suspected of being carrier of agenetic disease. Sterilization of the parents also took place in some such cases. In cases where the parents were Jewish, abortion was also not punished.[2][3]
The severest abortion prohibitions were incorporated into law on 9 March 1943. Section 218 stated that "a woman who kills her fetus or permits such a killing by another will be punished by a prison sentence and, in especially serious cases, by penitentiary. An attempt is punishable. Whoever else kills the fetus of a pregnant woman will be punished by a penitentiary sentence, in milder cases by prison. If the perpetrator through such deeds continuously impairs the vitality of the German nation, the death penalty is imposed. Whoever procures for the pregnant woman a means or objects for killing the fetus will be punished by prison sentence, and in especially serious cases, by penitentiary".DuringWorld War II, abortion policy in Nazi Germany varied depending on the people group and territory the policy was directed at. The commonality between policies was its purpose in promoting the birth rate and population of the "Aryan race" and minimizing the population of others (such as Slavs), and those deemed a burden on German society such as the children of disabled and mentally ill persons. Forced abortions ofOstarbeiter for instance was referenced in documents from the Trials of War Criminals Before theNuremberg Military Tribunals. It has been categorized as a part of Nazi Germany's "systematic program of genocide, aimed at the destruction of foreign nations and ethnic groups".[4]
While abortion had been punished by the law in Poland previously, under Nazi occupation these prohibitions were removed and abortion was instead encouraged subject to whether the child had a German father or could be racially "Germanized." Similarly, the policy for Eastern female workers, was that pregnancy may be "interrupted" if the pregnant woman so "desired" which gave the appearance of consent on behalf of the mother. For pregnancies of non-German woman, whether an abortion would be permitted also depended on the mother's nationality, but primarily turned on whether the father was German or if the mother was of a race that could be "Germanized." If the child was deemed to be of a race that could contribute to the German race and the father was German then an abortion, or as described in Nazi documents an "interruption of pregnancy," would likely not be permitted. Such determinations were made by the Race and Settlement Main Office (RuSHA)– who would determine the fate of the child.[5]
After World War II, abortion remained broadly illegal throughout both German states:West Germany reinstated the legal situation of 1927. 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.[6] Most of these terminations were the result ofrape committed by theSoviet Army.[7] An abortion cost around 1,000 marks and was performed without anaesthesia. 6000 Berlin women died each year in the Soviet zone from resulting complications.[6] All East German states, exceptSaxony-Anhalt, allowed abortion for social reasons in 1947 and 1948. Because this went against theSED's population growth policy, access to abortions was severely restricted in 1950 with the official motivation of 'protecting mothers and children' and 'for women's rights.' The 1950 abortion law promoted large families. Terminations of pregnancy were only allowed if the mother's health were endangered or if the father or mother suffered from ahereditary disease.[8]
On 6 June 1971, the cover of the West German magazineStern ran with the headline "We've had abortions!" (German:Wir haben abgetrieben!), and featured the pictures of 30 women who had done so.[9] 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.[10] In the years following publication, several of the participants admitted they had not actually had an abortion, includingAlice Schwarzer, who stated that it was irrelevant, because "we would have done it if we'd had an unwanted pregnancy."[11]
East Germany legalized elective abortion until 12 weeks of pregnancy in1972, in theVolkskammer's only non-unanimous vote ever in the first 40 years of its existence. After West Germany followed suit in 1974, its new law wasstruck down in 1975 by theConstitutional Court as inconsistent with the human rights guarantee of theconstitution. It held that the unborn has aright to life, that abortion is an act of killing, and that the fetus deserves legal protection throughout its development.[citation needed] Nevertheless, thelegal opinion strongly hinted that increasing the number of situations in which abortion was legal might be constitutional.[citation needed]
In East Germany, femaleVertragsarbeiter (foreign workers) were not allowed to become pregnant during their stay. If they did, they wereforced to have an abortion[12][13] or faceddeportation.
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 ofmedical 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, aBavarian 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.[citation needed]
The two laws had to be reconciled afterreunification. A new law was passed by theBundestag in 1992, permitting first-trimester elective abortion, 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 ChancellorHelmut 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,[citation needed] provided that the woman had submitted to state-regulatedcounseling intended to discourage termination and protect fetal life. Parliament passed such a law in 1995.[citation needed] Abortions are covered bypublic 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.[14]
In 2022, theOlaf Scholz coalition of social democrats, greens, and liberals, repealedparagraph 219a, together with votes fromThe Left.[15] This allowed medical professionals to state on their websites what kinds of abortion procedures they offer.[16]
| Year | 1996 | 2001 | 2006 | 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 | 2022 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Total abortions | 130 899 | 134 964 | 119 710 | 108 867 | 106 815 | 102 802 | 99 715 | 99 237 | 98 721 | 101 209 | 100 986 | 100 893 | 99 948 | 94 596 | 103 927 |
| Live births | 796013 | 734 475 | 672 724 | 662 685 | 673 544 | 682 069 | 714 927 | 737 575 | 792 141 | 784 901 | 787 523 | 778 090 | 773 144 | 795 492 | 738 856 |
| Abortions per 1000 births (live) | 164,4 | 183,8 | 177,9 | 164,3 | 158,6 | 150,7 | 139,5 | 134,5 | 124.6 | 128,9 | 128,2 | 129,7 | 129,3 | 118,9 | 140,7 |
| Abortions per 1000 women (15–44 years) | 7,65 | 8,04 | 7,42 | 7,52 | 7,45 | 7,23 | 7,05 | 6,98 | 6,96 | 7,13 | 7,10 | 7,08 | 7,03 | 6,65 | 7,15 |
| Number of women (15–44 years) in Tsd. | 17 109 | 16 783 | 16 133 | 14 480 | 14 337 | 14 216 | 14 146 | 14 215 | 14 182 | 14 188 | 14 222 | 14 240 | 14 212 | 14 215 | 14 545 |
| by marital status: | |||||||||||||||
| Single | 53 195 | 62 806 | 61 919 | 61 654 | 60 993 | 58 810 | 57 584 | 57 234 | 56 069 | 57 294 | 58 366 | 58 070 | 57 814 | 55 059 | 60 602 |
| Married | 68 524 | 63 686 | 51 119 | 42 153 | 40 742 | 39 355 | 37 628 | 37 659 | 38 529 | 39 669 | 38 712 | 38 727 | 38 286 | 35 961 | 39 656 |
| Widowed | 760 | 555 | 382 | 207 | 222 | 213 | 195 | 228 | 214 | 188 | 174 | 198 | 182 | 182 | 199 |
| Divorced | 8 420 | 7 917 | 6 290 | 4 853 | 4 858 | 4 424 | 4 308 | 4 116 | 3 909 | 4 058 | 3 734 | 3 898 | 3 666 | 3 394 | 3 470 |
Abortion-numbers had been falling over the last 25 years, there were 130,000-135,000 per year between 1996 and 2002, but this had fallen to a low of fewer than 99,000 abortions in 2016 and since then stabilized at around 100,000 abortions yearly.[18]
As of 2018[update], the abortion rate was 129 abortions per 1,000 live births.[19]
Abortion is illegal under Section 218 of theGerman criminal code, and punishable by up to three years in prison (or up to five years for "reckless" abortions or those against the pregnant woman's will). Section 218a of the German criminal code, calledException to liability for abortion, makes an exception for abortions with counseling in the first trimester, and for medically necessary abortions and abortions due to unlawful sexual acts (such as sexual abuse of a minor or rape) thereafter.[20][21]
All abortions in Germany must be performed by amedical doctor.[21]
Schwarzer selbst bestätigt, dass sie - 'wie einige wenige' - nicht abgetrieben hatte. 'Aber das spielte keine Rolle', sagt sie, 'wir hätten es getan, wenn wir ungewollt schwanger geworden wären. Das Selbstbekenntnis war kein moralischer, sondern ein politischer Akt.'[Schwarzer herself confirms that she - 'like a few others' - did not have an abortion. 'But that didn't matter,' she says, 'we would have done it if we'd had an unwanted pregnancy. Self-confession was not a moral act, but a political one.']
