§ 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.