§ 218 StGB: An archaic remnant of times past?

The socio-poli­tical debate surroun­ding abor­tion is a peren­nial issue not only in Germany, but also inter­na­tio­nally.

While the so-called “ban on adver­ti­sing abor­tions” in Section 219a StGB (old version) was deleted in Germany in 2022, the criminal offence of abor­tion remained in place.

In prin­ciple, Section 218 para. 1 StGB punishes anyone who termi­nates a pregnancy with a prison sentence of up to three years or a fine.

If the pregnant woman commits the offence herself, she is privi­leged with regard to the penalty in accordance with Section 218 Para. 3 StGB and must expect a maximum prison sentence of up to one year.

In certain cases, the termi­na­tion of a pregnancy is not punis­hable under Section 218a StGB:

Thus, accor­ding to Section 218a (1) StGB, cases are exempt from the offence of Section 218 StGB in which the pregnant woman has the abor­tion performed by a doctor at her own request within the first twelve weeks of pregnancy and under­goes appro­priate coun­sel­ling at least three days before­hand.

Accor­ding to Section 219 StGB, the coun­sel­ling must be provided by a reco­g­nised conflict coun­sel­ling centre that meets the requi­re­ments of the Pregnancy Conflict Act in parti­cular.

Apart from this constel­la­tion, there are two situa­tions in which the abor­tion is a criminal offence but not illegal due to the special circum­s­tances:

On the one hand, this concerns the medical indi­ca­tion as regu­lated in Section 218 para. 2 StGB and, on the other hand, the indi­ca­tion for crimi­no­lo­gical reasons accor­ding to Section 218 para. 3 StGB, conse­quently the situa­tion in which the pregnancy is the result of a sexual offence.

§ Section 218 para. 4 sentence 1 StGB provides for a so-called personal ground for exclu­sion from punish­ment for the pregnant woman. The offence may have been committed unlawfully and culpably, but the pregnant woman is not punished if she has the abor­tion performed by a doctor within the first 22 weeks after recei­ving coun­sel­ling within the meaning of Section 219 StGB — in these cases, however, the doctor remains liable to prose­cu­tion (!).

Finally, accor­ding to Section 218 para. 4 sentence 2 StGB, punish­ment can be waived if the pregnant woman was in parti­cular distress at the time of the abor­tion.

Since Sections 218 et seq. of the German Criminal Code were revised around thirty years ago, a lot has happened in inter­na­tional law in this regard:

In 1994, the United Nations (UN) adopted a programme of action aimed prima­rily at streng­thening so-called repro­duc­tive rights. These include the right to decide freely whether a person wants to have children and the right to lifelong access to rele­vant infor­ma­tion, resources, services and support.

Over the last twenty years in parti­cular, it has become incre­asingly diffi­cult for pregnant women to gain access to a medical abor­tion; between 2003 and 2021, the number of such faci­li­ties has almost halved. In rural areas in parti­cular, there are often no services available at all.

Against this back­ground and with refe­rence to the right to repro­duc­tive self-deter­mi­na­tion (Art. 2 para. 1 in conjunc­tion with Art. 1 para. 1 GG), freedom of consci­ence (Art. 4 para. 1 GG) and equa­lity rights (Art. 3 para. 2, 3 GG), more and more groups, inclu­ding above all the German Asso­cia­tion of Women Lawyers (djb e.V.), but now also the Protes­tant Church, for example, are calling for abor­tion to be regu­lated outside of criminal law.

Other argu­ments put forward include the strong stig­ma­tis­a­tion that would be asso­ciated with crimi­na­li­sa­tion and the fact that criminal law is an abso­lute “ultima ratio”.

In the coali­tion agree­ment, the federal govern­ment committed to setting up a commis­sion on repro­duc­tive self-deter­mi­na­tion and repro­duc­tive medi­cine.

This commis­sion began its work at the end of March 2023 and has since been exami­ning, among other things, possible ways in which abor­tions can be regu­lated outside of the Criminal Code.

It remains to be seen when it will present its findings to the public and whether this will actually result in changes to criminal law in the future. It may also depend on which parties make up the federal govern­ment in the next legis­la­tive period.