Germany’s ambiguous abortion laws rankle with all sides

It's almost 20 years ago, but Annika* remembers her abortion clearly. It was 1999, she had just moved from Zürich to Berlin with her two children after the break-up of her marriage.

It was only during the second, hassled month of building a new life in the German capital that she noticed her period hadn’t arrived.

When a doctor confirmed the pregnancy test result, she realised that the father was her ex-husband.

Full of misgivings, particularly after a miscarriage two years previously, she phoned him to explain the fruit of a last fling before parting ways.

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“When he heard the news, he just hung up,” she says. “I had no friends, family or support network in Berlin, I was physically and emotionally drained, at my wit’s end.”

Like many German women facing an unplanned pregnancy she made an appointment with an organisation that offers free consultations. After considering her options, just before the first trimester window closed, she had an abortion.

“I am a Rhineland Catholic, I was aware what I was doing – killing,” she says plainly. “But I already had responsibility for two children as a single mother and simply couldn’t manage any more.”

Annika's story is not unusual for the estimated 100,000 women in Germany who terminated a pregnancy last year.

According to the World Health Organisation, Germany registered 139 abortions per live births in 2015, under the EU average of 208.

But everyone agrees that these figures are incomplete: there is no obligation for doctors to register abortions, nor for chemists to pass on the number of morning-after pills they dispense.

To Irish eyes, Germany has a love of regulating into a level of detail that can often seem absurd. But when it comes to abortion, Germany is deliberately imprecise.

In what sounds like an Irish solution to an Irish problem, a woman who secures an abortion in Germany in the first trimester is, technically, breaking the law but will not be prosecuted.

Most still don't realise that abortion is illegal in Germany, and that makes many insecure

This is the solution reached after unification, when MPs struggled to square the vanished East Germany’s relatively liberal (first trimester) abortion law with the more restrictive West German regulation, allowing abortion only in the case of rape, danger to life of child or mother, or difficult social circumstances.

An emotional debate in German society concluded with a 16-hour marathon sitting of the Bonn Bundestag in June 1992 – the longest in German history.

The final agreement, allowing abortions in the first trimester, survived just three days: a federal state secured an injunction and the constitutional court found later that the new regulation contradicted its earlier abortion restrictions. The resulting compromise: to make abortion illegal but not prosecutable.

It was just the latest round in a long-running regulation wrestling match that is just a few months younger than the united German state.

In 1872, abortion was outlawed by Paragraph 218 of the criminal code. The ban resulted in a thriving backstreet abortion trade, organised by women referred to euphemistically as “Engelmacherin” or “angel makers”.

After decades swinging from liberal to restrictive, (see panel below) the abortion debate burst into the West German mainstream in June 1971. News magazine Stern shattered a societal taboo with a cover story in which 374 women – from actresses to housewives – came out under the headline "We've had abortions".

If the art of legislating in sensitive areas is to make all sides equally unhappy, then Germany’s current abortion regulation is a success. But tensions are building.

Abortion certificate

It’s after hours in the Berlin headquarters of the Pro Familia counselling service. Germany’s largest state-funded, privately run organisation offering counselling on sexual health, pregnancy and partnership issues. It is also the organisation to which Annika turned in 1997.

"Most still don't realise that abortion is illegal in Germany, and that makes many insecure," says counsellor Andreas Ritter after three hours of drop-in appointments.

For those who have informed themselves, the counselling session is simply about fulfilling their legal obligation and collecting a certificate that allows them to have an abortion three days later.

“If they come here with a decision, we don’t have to talk it over again but if we notice they have a difficult situation, we talk about it,” says Ritter.

Often it is only after he has issued the certificate – and the women are free to go – that the women open up about their difficult circumstances.

“Some women who leave with the certificate I see in here later for advice on raising a child, because they kept it,” he said.

Pro Familia is the largest such organisation in Germany allowed to issue counselling certificates, with a liberal and pro-choice reputation, but it is not the only operator.

Our Nazi inheritance weighs heavily on us and people, rightly, do not want to be even in the vicinity of those Nazi practices

Other organisations active in this field include the Catholic charity Caritas. Unlike Pro Familia, however, Caritas counsellors ceased issuing certificates in 1999 after an intervention from Pope John Paul II. Instead Caritas, in line with its Catholic ethos, offers women broader counselling on the support available should they go through with the pregnancy.

"Women know they won't get a cert from us but we talk with them about their difficult situation and ask them to consider deeply this irreversible decision," said Thomas Gleissner, Caritas Berlin spokesman.

The Catholic church in Germany has played a key role in the battle over abortion until a final battle in 2005 when, under pressure from the Vatican, the last hold-out Catholic counselling centres were forced to cease issuing certificates.

In a notorious contribution to the debate, Cardinal Joachim Meisner, archbishop of Cologne said: "First Herod, who let the children of Bethlehem be killed, then Hitler and Stalin among others who exterminated millions of people and today, in our time, unborn children are being murdered in their millions."

Another organisation in Germany's pro-life camp is the Federation for Life (BVL) which organises an annual "March for Life" in Berlin. Its last march in September attracted about 7,500 people, according to organiser Alexandra Linder.

We are talking in a hipster cafe in eastern Berlin. At the next table, a young woman is reading Never Let Me Go, Kazuo Ishiguro's dystopian novel about organ harvesting. Soon the woman, her book forgotten, listens in discreetly to Ms Linder's dystopian take on abortion, German-style.

Her pro-life organisation believes Germany’s 1995 legal compromise has created a de-facto abortion-on-demand culture. The BVL is lobbying for a national register of abortions and tighter regulation of prenatal testing.

It also offers support for women who choose to go through with a pregnancy – in particular those whose tests reveal Down Syndrome or other conditions.

“Women come to us under huge social pressure to have a termination, that plays a huge role,” she says. “If they decide for the child many are left alone because the attitude is, ‘you’ve only yourself to blame, you didn’t need to have the child’.”

Linder sees an “uncomfortable overlap” between Third Reich eugenics and conditions now identifiable by prenatal tests, the costs of some are covered by health insurance.

“Today we flip around the Nazi eugenics logic and allow abortions if a condition discovered would be too much of a burden for the mother,” said Ms Linder. “But the result is the same.”

It’s not just the anti-abortion side who see the Nazi shadow.

Nazi inheritance

Chantal Louis, a journalist with feminist magazine Emma, agrees that the Third Reich still colours Germany's ambiguous relationship to abortion.

“Our Nazi inheritance weighs heavily on us and people, rightly, do not want to be even in the vicinity of those Nazi practices,” she said.

Just how difficult it is to escape the past was clear last November when a doctor was found guilty, and fined €6,000, for the illegal advertisement of abortion services on her practice website.

Instead of removing the incriminating information from her website, like countless doctors before her, Dr Kristina Hänel had her day in court to raise awareness of – and demand abolition of – a law that dates back to the Nazi era.

“I am a doctor and am being charged because I inform and treat women,” said Dr Hänel after the conviction. “Now I am convicted under an unjust law, I don’t have to feel bad, it was a surreal feeling.”

More than 20 years after its abortion compromise, the only thing Germany’s anti-abortion and pro-choice camps agree on is that the status quo is unsatisfactory.

As Ireland faces into its own abortion battle this year, there is a feeling in the air that Germany may yet join in.

For Chantal Louis of Emma magazine, the 1995 compromise has left the pro-choice camp open to attack from anti-abortion groups, funded by US Christian fundamentalist groups. Many German feminists, says Louis, are fearful that battle they won risks being rolled back.

“We have a younger generation who don’t know the battles of the 1960s and 1970s, or the horror stories from before that,” she said. Anti-abortion campaigner Alexandra Linder agrees that the abortion debate in Germany is heating up again. She is hopeful of finding new allies among anti-abortion MPs in the far-right populist Alternative für Deutschland (AfD).

So what does she say to a woman who demands the right to choose what happens to her body?

“A child is not a part of a woman’s body,” she said. “It is a self-contained person who has to live in a woman for nine months.”

Urban versus rural

Back at Pro Familia, counsellor Andreas Ritter says that, for all the complications, he is relieved that women in Germany have access to a clean, medical procedure.

But the situation in big cities like Berlin is far more comfortable than in rural areas and conservative southern Germany, he says, where it is increasingly difficult to find doctors in general, let alone one willing to perform the procedure.

“For a woman on a low income outside a large city, her access to that law is not equal to others,” he said.

In 1926, Germany’s first abortion law was passed in the Reichstag. On a recent morning, eight decades later, dozens of women have gathered before the same building. They are carrying signs with slogans – “My Body, My Decision” – that many thought belonged to another era.

They are here to hand into the German parliament a petition with 150,000 signatures demanding an end to the Nazi-era law under which Dr Kristina Hänel was convicted.

“This law stands in the way of the right of women to information on the issue of termination of pregnancy,” said Dr Hänel to the crowd, demanding politicians act to abolish the Nazi shadow from Germany’s abortion legislation. “If there is one more lazy compromise, we will take this to the constitutional court.”

About 50m from the pro-choice group, separated by police, some two dozen people are also holding signs, reading “Prevent Abortion Advertising”.

After years in deep freeze, Germany’s uneasy abortion compromise is thawing again.

*Name changed

Abortion in Germany

1871: Abortion is outlawed in the new German Reich's constitution, with the woman and doctor both receiving jail terms for committing the act.

1926: Pregnancy terminations that protect the woman's health are permitted as post-war Germany evolves into the Weimar Republic.

1938: With the Nazi party in power, abortions for Aryan women are severely discouraged. Exceptions are made in cases where there is a high risk of the child being born deformed or disabled. However, abortions for non-Aryan women are encouraged so as to control their population.

1943: The punishment for an illegal abortion is increased. Seen as a capital offence, an illegal abortion could result in the death penalty for the woman and the doctor.

1950: Abortion remains illegal after the east-west division of Germany, with both reverting back to the legal precedent of 1926 as a basis.

1974: With two years delay, West Germany follows the east by legalising abortions in the first 12 weeks of pregnancy. However, the constitutional court overturns this ruling the following year, considering it a breach of human rights as the unborn foetus has a right to life and legal protection.

1976: Abortion in the first trimester of pregnancy is once again legalised by West Germany. Specifically limited to reasons of medical necessity, sexual crimes, or serious social or emotional distress, the termination must have the approval of two doctors and one counselling session.

1992: German reunification results in a unification of the east and west's abortion policy. The Bundestag permits first trimester abortions on demand, but requires a three-day waiting period and the woman to attend counselling.

1995 -present: Abortion is deemed illegal after the constitutional court maintains its 1975 ruling that the foetus has a right to life. However, at the court's suggestion, terminations in the first trimester are not punishable by law. Longer-term abortions are also permitted if the physical or psychological health of the woman is seriously threatened.

State-regulated counselling that discourages abortion and protects the life of the foetus must precede all terminations. The cost of an abortion, between €350 and €500, is only covered by health insurers in some cases of rape.

– Panel by Michael Madden