The debate around abortion, and if it should be legally available, has been stirred up ahead of a commission of independent experts which will present their research on the topic to the federal government on Monday in Berlin. 

The experts are expected to call for the federal government to officially decriminalise abortions in the early stages of pregnancy in the future. The experts question the existing obligation for pregnant women to seek advice before an abortion.

Last week, German news magazine Der Spiegel made excerpts from the report public: “The fundamental illegality of abortion in the early phase of pregnancy is untenable,” the report reads. Legislators should therefore allow abortions within the first 12 weeks of pregnancy, the experts write.

The traffic-light government’s coalition agreement arranged for an independent commission to examine the question of whether and under what conditions abortions could be exempt from punishment in the future.

The commission’s report is intended to advise legislators, but it does not mandate law makers to take action. Considering the next federal election is about a year away, it looks unlikely that a new law will be proposed (let alone adopted) in the near term. But the topic can be expected to be debated in election campaigns.

What’s Germany’s current law on abortion?

Currently, abortions in Germany are considered illegal under Section 218 of the Criminal Code, with a few exceptions. 

Still, abortions can be carried out legally according to a counselling regulation, which essentially allows abortions within the first 12 weeks of pregnancy so long as the pregnant woman has undergone mandatory counselling and complied with a waiting period.

Additionally, abortion is allowed for certain medical reasons or if the pregnancy is due to rape.

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In many of Germany’s neighbouring countries – such as Denmark, France, Czechia, and Austria – abortions are legally available at the request of pregnant women. 

In requiring women to undergo counselling and a waiting period, Germany is joined by Belgium, Italy, Hungary and Slovakia.

The commission, which was set up by the traffic light coalition government, has concluded that Germany’s current abortion law does not stand up to “constitutional scrutiny, international law and European law”. Instead, the commission suggests that abortions in the first 12 weeks should be considered lawful.

The basic arguments for and against legal abortions

Opponents to updating Germany’s abortion rules argue that the current law is already a working compromise.

The deputy chairwoman of the conservative CDU, Silvia Breher, told DPA that the current abortion law is a “well-balanced compromise” that “adequately preserves both women’s reproductive self-determination and the protection of unborn life”.

Breher, who is also family policy spokeswoman for the CDU/CSU parliamentary group, warned against abolishing the existing obligation to provide counselling for pregnant women in the event of an abortion: “If this were to be abolished, the unborn life would be left completely defenceless and women would run the risk of making a hasty decision.” 

On the other hand, experts who study the issue suggest that keeping abortion in the criminal code makes the issue one marked by controversy and may prevent some women from seeking the resources they need.

“Abortion is associated with stigmatisation,” Dr. Daphne Hahn, a member of the commission and professor at the University of Fulda, told BILD. Having studied the experiences of women with unintended pregnancies she recommends decriminalising abortion as the best way to destigmatize the issue.

What does the commission recommend?

According to reporting by Der Spiegel, the commission suggests that late-term abortions should remain prohibited (except in the case of medical complications or pregnancies due to rape).

In the commission’s view, the legislator should decide until which week of pregnancy abortions are allowed – therefore the 12 week limit could be maintained, or it could be extended up until the 22nd week.

If it proceeds, the legalisation of abortion could have impacts beyond the change of law alone. If legalised the cost of an abortions could be mandatorily covered by health insurance, for example. Whereas now the cost typically must be covered by the affected woman.

Additionally, the commission looked into the legality of surrogacy and egg donation – both of which are currently prohibited in Germany.

Egg donation was banned in 1990 on the grounds that it would create legal complications and potentially harm children who experienced a “split motherhood”. The commission considers that this reasoning is outdated and no longer convincing. 

READ ALSO: Germany debates legalizing egg donations and surrogacy

With reporting by DPA