The Legal Framework of Abortions in Germany
Social issues like abortion, the question of when life begins, and healthcare coverage for birth control have featured prominently in the Republican primary debates. What is the situation in Germany? This Spotlight describes to what extent abortion is lawful or unlawful and what services are covered by health insurance in the Federal Republic.
The German penal code (paragraph 218) states that abortion is unlawful. Those who attempt to abort a fetus face up to three years in prison or a fine. In severe cases, where the perpetrator acts without the consent of the pregnant woman or frivolously endangers her life or health, the sentence ranges from six months to five years in prison. If the pregnant woman aborts her fetus, she faces up to one year in prison or a fine.
Paragraph 218 explicitly states that any actions taken prior to the fertilized egg’s attachment to the uterus wall are not considered an abortion. While the attempt to abort a fetus by a third party is unlawful, a woman who unsuccessfully attempts to end her pregnancy will not be prosecuted.
Paragraph 218a of the penal code, while maintaining the unlawfulness of an abortion, mandates that the doctor and pregnant woman performing and undergoing an abortion are not to be prosecuted under the following circumstances:
1) a pregnant woman requests the abortion and can demonstrate to the doctor that she has undergone consultation at least three days prior to the abortion;
2) the abortion is performed by a medical doctor; and
3) the abortion takes place within the first trimester.
The penal code further states that an abortion is not considered unlawful if the doctor determines that a pregnancy endangers the woman’s life or severely compromises her physical or mental health and no other solution can be found. If the pregnancy is the result of rape, an abortion is lawful. In both cases, the abortion is to be performed within the first trimester.
In addition, abortions that are performed prior to the twenty-third week of pregnancy are lawful if the woman is found to be under particular distress at the time of the procedure and has undergone consultation. Individuals performing an abortion without the determination by a doctor that the life and health of a pregnant woman are compromised will be prosecuted under paragraph 218b.
The consultation prior to an abortion is to be performed by a state-recognized social service agency that advises women on pregnancies (Schwangerschaftskonfliktstelle). The agency issues a certificate for the doctor who is to perform the abortion and it serves to exempt the doctor and woman from being prosecuted under paragraph 218. The doctor who performs the abortion is not eligible to advise his/her patient.
While paragraph 218 has been in place since 1871, it has undergone several amendments since. After German unification it was necessary to align the West German law with the East German law. East Germany did not restrict or criminalize abortion during the first trimester. In 1992, the German Bundestag voted to amend paragraph 218 to adopt the former East German law, the so-called Fristenregelung, but included a compulsory consultation prior to the procedure. After an action introduced by several deputies of the CDU/CSU and the Bavarian state government, the law was struck down by the Federal Constitutional Court in 1993, who considered parts of the new law unconstitutional. The law was reworked in 1994 and 1995, with the result that today abortion remains generally unlawful but not punishable under certain circumstances.
German health insurance typically covers abortion procedures if a medical or criminal indication is present. In most other cases, e.g., those performed according to paragraph 218a and considered unlawful, the woman has to cover the medical costs herself.
Individual health insurance typically covers birth control if a medical prescription is required (e.g., birth control pill) and the woman is under twenty years of age. Once a woman is twenty, her health insurance does not cover any form of birth control unless it is considered medically necessary. Doctors prescribing birth control to girls under the age of fourteen require parental consent. Doctors may determine whether young women between fourteen and sixteen years old are mature enough and do not require parental consent for the prescription of birth control. Young women sixteen or older do not require parental consent for any form of birth control.