Definition of the unborn child and legal framework
Als Unborn child is the term used in German law for a human being not yet born, that is, the embryo or fetus at any stage before birth. The term is used in various areas of civil and criminal law, and is particularly relevant to questions of the protection of life, inheritance law, and criminal law concerning the killing of the unborn child.
Historical and legal development
The legal treatment of the unborn child, particularly with regard to its killing, has continuously changed throughout German legal history. While regulations in the Middle Ages were inconsistent, today key provisions are found both in the German Civil Code (BGB) and the German Criminal Code (StGB).
German Civil Code (BGB)
In the BGB, the unborn child mainly plays a role in inheritance and children’s law. According to § 1923 para. 2 BGB, a child that has not yet been born (nasciturus) is capable of inheriting if born alive. Thus, certain rights are granted to unborn life, but these are subject to the actual survival at birth.
German Criminal Code (StGB)
Criminal law primarily protects the unborn life in the context of the killing of the unborn child. The most important provisions are contained in §§ 218 et seq. StGB (“Offenses against life – abortion”).
The killing of the unborn child in criminal law
Explanation of terms: Killing of the unborn child
The killing of the unborn child essentially refers to the intentional or negligent termination of unborn human life. The legal term generally refers to abortion but also includes cases of external influence, where the unborn child is killed by third parties.
Criminal offense: Abortion (§ 218 StGB)
Der Abortion is generally punishable under German law (§ 218 para. 1 StGB). Only in specific circumstances, such as compliance with statutory time limits and counseling requirements (§ 218a StGB), does the act remain unpunished.
Requirements for criminal liability
- Intentional termination of pregnancy generally constitutes a criminal offense.
- Ein Protection of the unborn child also applies in cases of negligence (for example, through bodily injury to the pregnant woman resulting in death).
- Exceptions apply in particular in cases of rape (§ 218a para. 3 StGB) or in cases of medical indication (to protect the life or health of the pregnant woman).
Involvement of third parties
Third parties – namely physicians, the environment of the pregnant woman, and other persons – can also be held criminally liable if they are involved in an unjustified intervention.
Legally protected interests and scope of protection
Das unborn life enjoys constitutional protection under Article 2 para. 2 sentence 1 GG (“Everyone shall have the right to life and physical integrity”). According to case law, this protection includes the unborn child from the time of nidation (implantation of the fertilized egg), but not earlier prenatal stages.
Distinction from other offenses
Distinction from killing on request and manslaughter
The killing of the unborn child is not equated with §§ 212, 216 StGB (manslaughter, killing on request), as the unborn child is not legally considered a “person” for the purposes of these provisions. Protection of unborn life ends with the commencement of birth; from that point onward, other offenses such as manslaughter or murder apply.
Bodily injury to the pregnant woman with consequences for the unborn child
If bodily injury to the pregnant woman results in death or injury to the unborn child, separate criminal liability according to §§ 223 et seq., 227 StGB is possible, depending on the resulting harm and causality.
Special cases: Harm to the unborn child and negligent killing
The negligent or intentional causing of death to the unborn child can also be of criminal relevance outside of a targeted abortion, for example in traffic accidents or other acts of violence that injure or kill the fetus in the womb.
Procedural particularities
Representation of the unborn child
In court proceedings, the unborn child, where necessary, is represented by a guardian appointed by the court, who safeguards the interests of the unborn child.
Aspects of evidence law
The determination of whether and when the unborn child died may be of considerable significance for the attribution and assessment of the offense. This concerns in particular the period between the beginning of the pregnancy and birth.
International legal comparison
The provisions for the protection of the unborn child and regulations surrounding its killing differ considerably in international comparison. While many European countries have comparable regulations concerning abortion and the protection of life, there are differences with regard to time limits, indications, and criminal sanctions.
Summary
Die Killing of the unborn child is comprehensively regulated in Germany and is subject to differentiated protection under both civil and criminal law. The relevant provisions are aimed at protecting unborn life, preventing criminal offenses, and ensuring a careful balance between the self-determination of the pregnant woman and the right to life of the unborn child. The killing of the unborn child is generally punishable, but there are statutory exceptions that provide for the possibility of impunity under strict legal conditions. The handling of this complex issue is of great significance for the protection of life and for medical-ethical practice in Germany.
Frequently asked questions
When is the killing of the unborn child considered punishable under the law?
In German law, the killing of the unborn child is regulated in particular by the Criminal Code (StGB). As a rule, the intentional killing of the unborn child – that is, the unborn child – is punishable under § 218 StGB as an abortion. Abortion becomes punishable if it takes place without observing the statutory requirements, i.e., in particular without prior counseling and observance of certain time limits or without medical or criminological indication. The unborn child is defined as the child present in the womb – from nidation (implantation of the fertilized egg in the uterine lining). Criminal liability thus does not begin with fertilization, but with implantation. If the legal requirements are not observed, it is legally classified as a punishable killing of the unborn child.
What statutory exceptions to punishability exist?
German criminal law provides in § 218a StGB for numerous exceptions to the general punishability of killing the unborn child. There is no punishability, for example, if the abortion is carried out within the first twelve weeks after conception and the pregnant woman has undergone mandatory counseling under the Pregnancy Conflict Law at least three days before the procedure (counseling requirement). Furthermore, abortions are also exempt from punishment after this time limit if there is a medical or criminological indication. The medical indication applies in cases where the life or the physical or mental health of the pregnant woman is seriously endangered. A criminological indication applies if the pregnancy is the result of an unlawful act, such as rape.
Who can be held criminally liable for the killing of the unborn child?
Not only the pregnant person themselves can be held liable for the killing of the unborn child. The StGB provides that third parties who perform or enable an abortion – such as medical personnel – can also be punished if the legal requirements are not fulfilled. Persons who solicit, incite, or assist in the killing of the unborn child can also be held criminally liable. There are different penalties depending on whether the procedure is carried out with or without the consent of the pregnant woman. In addition, special consideration is given when the pregnant woman is coerced into taking this step by others.
What criminal consequences can result from killing the unborn child?
The penalty for the killing of the unborn child is set out in § 218 StGB. An unauthorized abortion is punishable by imprisonment for up to three years or a fine. If the action is performed without the consent of the pregnant woman, the penalty can increase to up to five years’ imprisonment. If the pregnant woman herself attempts an abortion and violates the legal requirements, she is also punishable; however, the law often provides the possibility of waiving punishment if there are mitigating circumstances. The medical license can also be affected if the statutory provisions are disregarded.
How is the killing of the unborn child distinguished from other homicide offenses?
The killing of the unborn child differs from other homicide offenses, such as manslaughter (§ 212 StGB) or murder (§ 211 StGB), in that the unborn child is not regarded as a person within the meaning of these provisions. Legally, the unborn child is only considered a human being with the commencement of birth (§ 1 BGB). Before this point, only the special rules on abortion apply. This legal distinction is decisive for classification and the relevant criminal law norm.
What procedural particularities apply when prosecuting offenses related to the killing of the unborn child?
Criminal offenses under §§ 218 et seq. StGB are generally prosecuted ex officio (official offense), but there are exceptions: For example, according to § 218b para. 3 StGB, a criminal complaint is required in cases where an abortion is performed at the request of the pregnant woman and she alone is affected. Proceedings take place, as with other homicide offenses, before the ordinary courts. It must always be examined whether the requirements for a lawful intervention were met, which necessitates comprehensive evidence-gathering and examination of the medical documentation.
What role does physician counseling play in the context of killing the unborn child?
Medical counseling and comprehensive information for the pregnant woman are central requirements for the impunity of abortion. According to the Pregnancy Conflict Law, counseling must be non-directive and must take into account the protection of unborn life. The purpose is to inform the pregnant woman about all medical, social, and legal options. Non-compliance with this duty can lead to punishment and is particularly relevant to whether a procedure falls under the exceptions of § 218a StGB. Obtaining written confirmation of the counseling session is mandatory.
