Paragraph 218: Commission recommends legalizing abortions

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Protest in Munich: Hundreds of people demonstrate against a march by abortion opponents

Photo: leo.fge / aal.photo / IMAGO

After a year, the time has come: the working group on abortion set up by the traffic light coalition has completed its work - and is proposing a thorough revision of the current law. “The fundamental illegality of abortion in the early phase of pregnancy is untenable,” says the final report, which is available to SPIEGEL. The experts write that the legislature should therefore allow abortions within the first twelve weeks of pregnancy.

To date, abortions in Germany are generally considered illegal according to Section 218 of the Criminal Code. However, they remain unpunished under certain circumstances, for example if the life of the pregnant woman is at risk, if the pregnancy was preceded by sexual violence or if the abortion is carried out as part of the so-called counseling regulation - i.e. takes place within the first twelve weeks and the pregnant woman has previously undergone compulsory counseling has undergone and complied with a waiting period.

The current construction is considered a social compromise, but it is controversial. Opponents see the regulation in criminal law as an unnecessary stigmatization that makes abortion care more difficult.

The commission appointed by the traffic light has now come to the conclusion: The current regulations in the criminal code did not stand up to “constitutional, international and European law scrutiny”. Instead, abortions in the first twelve weeks should generally be considered legal.

Legalization beyond the twelfth week?

However, according to the Commission, abortions should remain prohibited in the late phase of pregnancy, i.e. when the fetus is capable of independent viability. According to the experts, this limit is around the 22nd week since the start of the last menstruation. In the Commission's view, which regulation should apply in the weeks between the early and late phases is a matter for the legislature. He can determine at his own discretion “up to which point in time he will allow an abortion with the woman’s consent.” From the experts' point of view, it could also be legal to allow abortions beyond the twelfth week.

According to the commission, “if the continuation of the pregnancy is unreasonable for the woman,” abortions should also be possible in later phases of the pregnancy. This is the case, for example, if the pregnancy "endangers the life of the pregnant woman or threatens to significantly impair her physical or mental health" or if the pregnancy was preceded by sexual violence.

The fundamental legalization of abortions could have consequences that go far beyond criminal law. In their report, the experts mention, for example, the health insurance companies' right to provide benefits: Up to now, women who terminate a pregnancy as part of the counseling arrangement usually have to cover the costs themselves. If abortions are deemed legal in the future, health insurance companies could be required to pay for the procedure.

However, according to the Commission, the legislature can stick to one point: the obligation to provide advice. This can therefore also exist if abortions are legal. But the legislature could also decide to abolish the obligation, the experts write. But then he should still ensure a “comprehensive, low-threshold, low-barrier and multilingual advisory service” that is available to women free of charge.

Possible changes to egg donation and surrogacy

The commission did not only discuss abortions. At the same time, another group of experts dealt with the topics of egg donation and surrogacy. The results are also available to SPIEGEL.

So far, both egg donation and surrogacy are banned in Germany. The commission comes to the conclusion that it is ethical to allow egg donations. While sperm donation is permitted in Germany, egg donation was banned in 1990 on the grounds that it creates a “split motherhood.” Accordingly, the child would suffer damage if the social and genetic mother were not the same. However, the Commission considers this reasoning to be outdated and no longer convincing. Legalization of egg donation is therefore permissible "provided it is based on a legal basis that, in particular, guarantees the necessary protection of the donors and the well-being of the child."

However, the working group is more cautious about legalizing altruistic surrogacy, in which a woman carries a child for another person. The experts write that lawmakers could stick to the ban. If the protection of the surrogate mother and the child's well-being are sufficiently guaranteed, legalization of surrogacy is also permissible in certain cases. The prerequisite is that parents and surrogate mother know each other through a family relationship, for example, or that they reach an agreement that a relationship between both parties will continue beyond the birth. In addition, a surrogate mother should receive “appropriate compensation”.

The traffic light coalition set up the commission with experts from the fields of law, health and ethics last year. “In this way, we are creating an up-to-date scientific basis for the political and social discussion of some of the most difficult questions of reproductive self-determination,” explained Justice Minister Marco Buschmann (FDP) last year. After that, “there will be enough space for the necessary broad political and social discussion of the results.”

The commission's recommendations are not binding for the federal government. However, they are considered an important basis for potential new regulations on abortion, surrogacy and egg donation. The current law in all three areas is controversial. The traffic light coalition has therefore decided to examine it and, if necessary, revise it based on the commission's recommendations.