Abortion and Women’s Legal Personhood in Germany: A Contribution to the Feminist Theory of the State


The unified Federal Republic of Germany has one of the world’s most complex and confusing laws governing abortion. Abortion law in the pre-unification Federal Republic (“West Germany”) was already quite complicated. The unification process gave rise to further complexities as German lawmakers attempted to reconcile the relatively permissive abortion regulations of the German Democratic Republic (“East Germany”) with West Germany’s more restrictive laws. Beginning in 1972, East Germany granted women unrestricted access to abortion in the first trimester, an approach known as the “periodic model.” In contrast, since 1976, West Germany had allowed abortion only after the pregnant woman, having undergone mandatory counseling, had procured from a medical professional a certificate indicating that there were legitimate grounds for ending the pregnancy, an approach known as the “indications model.”

Under current law, both abortion and attempted abortion are generally prohibited. A woman can procure a legal abortion, however, in certain circumstances. First, the woman seeking an abortion must undergo mandatory counseling. The counseling must take place at a recognized counseling center, and the counselor may not perform the abortion procedure. This counseling is not neutral, but “serves to protect unborn life.” The counselor gives the woman a certificate that allows her, after a three-day waiting period, to request an abortion. A doctor may then perform a legal abortion in the first twelve weeks after conception if the woman’s life or health is endangered or if the woman has become pregnant as the result of a crime of which she was the victim. Moreover, the law specifically exempts from punishment women who procure abortions without the proper certificates.

Germany’s new abortion law is one indication of the status of women in the new German state. Although the current abortion regulatory regime will prevent few German women from getting abortions, abortion-rights activists consider the new law more of a defeat than a victory. Critics stress that, by assigning women certain duties as child-bearers, and by requiring that they undergo counseling before making decisions about their own bodies, the law has ramifications for women’s status as legal persons in other areas of the law.

Part I of this note reviews the history of Germany’s statutes criminalizing abortion and discusses the attitudes towards women that gave rise to these statutes. Those attitudes changed in the course of the twentieth century, and, as a result, Germany’s criminal abortion statute increasingly came under attack as the century progressed. This historical background raises the question of the extent to which contemporary abortion regulatory regimes are still dependent on antiquated assumptions regarding women’s social roles. Abortion was most severely restricted in Germany during periods when the government pursued policies designed to discourage women from seeking paid employment and to encourage them to focus their energies on their household duties, including the duty to bear and raise children. Since World War II, East and West German women have been increasingly integrated into political and economic life, but abortion law has not always facilitated that process.

In Part II, this note relates the differing regulatory schemes that arosein the two post-war German states to their political and economic systems, giving special attention to the status of women in the two German societies.

Views regarding women influenced the development of abortion law in post-war Germany, but other factors also played a role. Having accepted responsibility for the actions of the Nazi government, West Germany had to have an abortion policy consistent with its aim of distancing itself from the policies of Nazi Germany, especially from that regime’s rejection of the view that all human life is equally valuable and worthy of the state’s respect and protection.” East Germany, on the other hand, did not accept responsibility for the actions of Hitler’s government. Its abortion policy was thus more heavily influenced by the ideology, economics and policies of the East Bloc. Abortion regulation inevitably touches on the question of women’s rights to control their own bodies, and the criminalization of abortion thus has consequences for a theory of women’s legal personhood. Regardless of the two German states’ articulated aims in regulating abortion as they did, women in the two Germanys drew their own conclusions regarding their legal status and rights to self-determination as a consequence of the abortion regulatory schemes under which they lived. The significance of the differences in the two regulatory systems and the importance to women of reproductive freedom became especially clear with the unification of Germany in 1990 and with the battles in the 1990s over the creation of a new law on abortion for all citizens of the unified German state.

Part III of this essay explores the controversy that erupted over Germany’s abortion law when these two separate cultures were suddenly thrown together and evaluates the Constitutional Court’s most recent abortion decision in light of feminist theory. East Germans generally acquiesced to the superiority of the West German political and economic systems, but there were elements of their own society to which they clung.Their preferences cannot be understood in terms of a provincial attachment to the familiar. They were, rather, the product of a firm conviction that their East German society, flawed though it was, provided fundamental protections of human rights and individual freedoms that were not guaranteed by West Germany’s Basic Law. Reproductive freedom is one area in which women felt their interests were better protected under East German law.

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