Abortion Law in Germany

Abortion is fundamentally illegal and is therefore regulated in the German Criminal Code (StGB) under §218. Only under certain circumstances is abortion exempt from punishment. We break down these circumstances here:

1. Counselling regulation (Section 218a (1) StGB)
   If the pregnant woman wishes to terminate the pregnancy, she can do so up to the 14th week of pregnancy (WIC)*. Although the abortion is then still illegal, it remains unpunished. To do so, the pregnant woman must attend a pregnancy conflict counselling session at one of the state-recognised counselling centres and be issued with a counselling certificate. According to the law, the counselling serves to “protect the unborn child”. There must be at least three full days of “reflection time” between the counselling and the actual procedure. It is important to note that counselling and the procedure itself must not be carried out by the same person.
2. Criminological indication (Section 218a (3) StGB)
   If a pregnancy is the result of sexual abuse or rape, an abortion may be performed up to the 14th week of pregnancy*. In this case, abortion is not illegal. The indication must be given by a doctor who does not perform the abortion themselves. Prior counselling is not mandatory, but should be offered.
   What many people (including doctors) do not realise: No criminal charges or any kind of “proof” is necessary for a criminological indication. If an unintentionally pregnant person tells their doctor that they became pregnant as a result of rape, it is sufficient as an indication if the doctor makes an informal note of this.
3. Medical indication (Section 218a (2) StGB)
   If the pregnancy poses a “danger to the life or […] physical or mental health of the pregnant woman” and “the danger cannot be averted in any other way that is reasonable for her”, a doctor can give a medical indication. In this case, the termination of pregnancy is not illegal. There must be three days between the notification of the medical diagnosis and the written indication. The pregnant woman must be informed about the possibility of psychosocial counselling.
   In contrast to the counselling regulation and criminological indication, an abortion according to the medical indication is also possible after the 14th week of pregnancy*

According to the Federal Statistical Office, around 96% of abortions in 2020 were carried out according to the counselling regulation, around 4% according to medical indication and around 20 cases per year according to criminological indication. This figure has remained fairly constant for years.

*The calculation of the weeks of pregnancy (WOP) often causes confusion. There are two different ways of calculating this: “post menstruationem” (p.m) and “post conceptionem” (p.c.). In medicine, it is usually calculated from the first day of the last menstrual period (i.e. p.m.), as the exact day of conception is unknown. On our website, we therefore use the calculation commonly used in medicine.
However, the German Criminal Code (StGB) calculates in weeks after conception (i.e. p.c.). So if the StGB says “12 weeks after conception”, this is actually the 14th week of pregnancy (p.m.).

In Germany, there is an obligation to undergo counselling and a three-day waiting period (§219 StGB).

Furthermore, the “marketing of abortifacients” (Section 219b StGB) is prohibited. Section 219a StGB (“Advertising for abortion”) was repealed in 2022. Many associations welcome this, as this paragraph primarily represented a ban on information when it was implemented. It prohibited doctors from providing information about the fact that and how they offer abortions in their practices. Many doctors had to fear being reported to the police by opponents of abortion.

The Pregnancy Conflict Act (SchKG) regulates topics such as pregnancy conflict counselling and the assumption of costs for abortion. As the SchKG is somewhat complicated to read, we list the most important points relating to abortion here:

• If damage to the child’s health leads to a medical indication for termination of pregnancy, this indication may only be given at least 3 days after diagnosis (§2a).
• Even though pregnancy conflict counselling is officially supposed to be “open-ended”, §5 SchKG, just like §219, para. 1 StGB, clearly stipulates: “Pregnancy conflict counselling serves to protect unborn life.” Some associations therefore criticise the fact that this is a contradiction in terms.
• The counselling certificate, which is required to carry out an abortion without penalty (see Section 218a StGB), should be issued at the end of a counselling session. However, a counselling centre may deem a further counselling session necessary before such a certificate is issued. However, the issue may not be delayed or refused to such an extent that the unintended pregnant woman would miss the prescribed deadlines of §218a StGB. (§7)
• The Pregnancy Conflict Act also stipulates that a comprehensive range of counselling centres close to where people live must be ensured. The coverage ratio provides for one full-time counsellor per 40,000 inhabitants. (§3, §4, §8) The requirements that a counselling centre must fulfil in order to be officially recognised are also regulated here. (§9)
• The Pregnancy Conflict Act also stipulates that a sufficient supply of facilities that perform abortions must be ensured. However, no supply key is specified here, as is the case for counselling centres. (§13)
• According to §12, healthcare personnel can refuse to perform an abortion on grounds of conscience as long as the unwanted pregnant woman is not in mortal danger.
• Since March 2019, the German Medical Association has published a list of all facilities that perform abortions. (§13)
• According to §19, the costs of an abortion are covered in certain cases. This must be applied for via the health insurance company.