Abortion in Germany is, according to §218 of the Criminal Code from 1992 technically illegal and punishable with imprisonment up to three years or a fine. However, it is legal to have an abortion when the requirements of §218a are met. First, the abortion must take place before week 12. Second, a woman must seek counseling prior to having an abortion. In the federal state Bavaria, the woman must also tell the reason why she is seeking to terminate the pregnancy. Third, at least three days must have passed between the counseling and abortion, and the third day after counseling cannot be after week 12. The mandatory counseling is supposed to be open-ended, but it should serve to protect the pregnant woman's life. As Uta and Brigitte have told us, doctors can have differing views on abortion, which might be vocalized during the counseling session. Uta still went through with her decision to have an abortion, although her doctor tried to persuade her to continue the pregnancy.
1871-1918 – German Empire
The history of §218 is inextricably linked to the resistance against that paragraph, which defines the criminal consequences of abortion. A uniform regulation of abortion in Germany has only existed since the foundation of the German Empire in 1871. With the inclusion of §218 in the Criminal Code of the German Reich, the ban on abortion was regulated by law. Organized women’s resistance to this paragraph was formed at the end of the 19th century, which put the right of the unborn fetus above women’s right to self-determination.
1918-1933 – Weimar Republic
In 1920, the Social Democrats requested impunity for abortion during the first three months. The motion did not get a majority. Other initiatives to liberalize or abolish §218 were not successful, although not only politicians, but also writers, doctors and numerous women's organizations advocated for this. For many of them, §218 was a "class paragraph", which applied especially to poor women. Rich women could find a doctor, who, for a good price, performed the procedure safely. For the many women who lived in social need, the only option left was either to perform the abortion themselves or to place themselves in the hands of medical laypeople. Many of these women suffered or died as a result of the procedure.
The only success of efforts to liberalize §218 was in 1926, when the criminal law was slightly changed. Abortion was no longer a crime but only a misdemeanor and was punished with prison rather than penitentiary. In 1927 it was added that abortion due to medical reasons and carried out by doctors was permitted. Nevertheless, demand for a change in the abortion law did not end. Again and again, there were demonstrations and protest marches demanding the abolition of the "shame paragraph".
1933-1945 – National Socialist Era
After the National Socialist seizure of power, the debate on §218 was mainly influenced by aspects of population policy. The National Socialists wanted to halt the decline in the birth rate and increase the birth rate of women. However, only children of "racially valuable" women were desired. Women who did not meet the requirements of National Socialist racial hygiene were allowed to have abortions and these were later even performed on them against their will. For those who continued to perform commercial abortions, the death penalty was introduced in 1943.
1945-2021 – After the end of the Second World War, the Cold War and Reunification
The German Democratic Republic (GDR) and the Federal Republic of Germany (FRG) took different stands regarding abortion policies until reunification in 1990. In 1972, GDR passed a law that allowed women to decide for themselves whether they wanted to have an abortion up to the end of three months gestation.
The climate in the early FRG was characterized by a very conservative sexual morality, regarding both contraception and abortion. If a woman wanted to have an unwanted pregnancy terminated, she had to find a doctor who was willing to perform an abortion despite the threat of punishment. Usually this was so expensive and socially disadvantaged women, of which there were many in the post-war period, could not afford it. A new women’s movement developed in the 1960s, and they demonstrated for the repeal of §218 with different means and watchwords. Tensions were high and the public debate on abortion in FRG was fierce. What and who should be prioritized – the right to live for the unborn fetus or the right to choose for the pregnant woman? Attempts were made to liberalize §218 in 1974, but these efforts were shut down. In 1976 it was codified that abortion was prohibited and the new law contained a threat of punishment against the pregnant woman and the doctor. An abortion was not punishable in case of a medical indication (danger of the pregnant woman’s life), criminological indication (pregnancy as a result of rape or incest), eugenic indication (severe malformation of the fetus) or "emergency" indication (psychological or exceptional social situation). Thus, it became legal to terminate the pregnancy if the woman was in an emergency situation so grievous that the continuation of the pregnancy could not be expected of her. The indication for abortion had to be determined by a doctor, but not the doctor who would then perform the abortion. Mandatory counseling was also prescribed. A period of three days had to be observed between the consultation and the abortion. The law caused great indignation among the women who had fought hard for several years for the right to abortion without punishment, and numerous protests ensued. Women who lived in states governed by conservative parties had trouble finding doctors who would certify the pregnant woman being in distress and therefore seek to terminate the pregnancy. It was difficult for them to find a doctor or hospital, where, if the certificate was issued, they could have the procedure done. Therefore, they often had to travel to another federal state or to the Netherlands. Many women had traveled to the Netherlands since the early days of FRG as the laws were more liberal there.
The two differing laws had to be reconciled after reunification of Germany and conflicts over §218 arose yet again. Women from both former states demanded the deletion of the paragraph, but there were also counterdemonstrations. In 1992, the German parliament passed a three-month time limit solution with an obligation for consultation and three days of mandatory reflection before the abortion is performed. If there is a criminological or medical indication, abortion is not illegal. Since 2010, however, mandatory counseling is also prescribed for in case of medical indications.
Abortion in Germany is only legal if the requirements of 12 weeks’ gestation, counseling and mandatory reflection are met. Abortion remains a hot topic in Germany, with an increasing divide between “pro-life” and “pro-choice”. Many gynecologists tell of abortion seeking women who are scared to come into the clinics because pro-life people are standing outside and harassing women who enter the clinic. Moreover, the pro-life movement gathers every year for a march in Berlin. Here, they are met with counterdemonstrations led by pro-choice groupings.
In 2017, discussion about the abortion paragraph rose again, triggered by the case of Doctor Kristina Hänel. She was fined €6,000 for having violated §219a, an article in the Criminal Code from the Nazi-era that bans advertisement of abortion services. Doctor Hänel was fined as she had provided information of her services, including abortion, on the website of her doctor's office. However, the judgement is not legally binding, as §219a, which was triggered by this trial, has been changed in the meantime. Doctors can now inform that they offer abortion services, but not describe the methods or exact services related to abortion. Therefore, Hänel’s case must be retried.
A section of the law stipulates that no-one is obliged to take part in an abortion procedure unless the pregnant woman’s life is in danger and abortion is the only way to save her life. This gives doctors and medical staff the possibility to choose themselves to work in that section of healthcare, which might be a reason why fewer and fewer clinics and doctor’s offices perform abortions. Another contributing factor is that many medical schools simply do not teach students how to perform abortions. This has also triggered a wave of medical school students to train to perform abortions on papayas. The doctors who have performed abortions across Germany are in their 60s and 70s and reaching retirement. In March 2020, there were no doctors in the state of Bavaria carrying out abortions. All these factors combined lead to women who live in some regions and want to terminate their pregnancy having to travel large distances to access abortion healthcare. In many cases, this equals increased health risk and a higher financial burden. In 2021, a pilot project based in Berlin was launched, where four gynecologists confer with women who want to have an abortion via telemedicine. This is a way to combat the shortage practicing abortion doctors, as well as the various obstacles to medical care that come with national COVID-19 prevention measures.
Written by: Tilla Solli for The Women's Museum of Norway
Information collected by the Women's Museum in Fürth, Germany
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