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Abortions in first 12 weeks should be legalized in Germany, commission says

Most cases of abortion are illegal in Germany, which report says is not compatible with international standards

by Narges Mohammadi

Advocates of a law change have welcomed the investigation into the country’s legal framework, calling the law outdated and detrimental to women. Even in the cases not considered illegal, the procedure must take place within the first three months, except when there is a compelling reason to carry it out later.

The all-female expert commission on reproductive self-determination and reproductive medicine was set up by Chancellor Olaf Scholz’s three-party government after the desire to change the 153-year-old law was anchored in its coalition agreement.

However, opposition lawmakers, in particular from the conservative Christian Democratic Union/Christian Social Union alliance and the far-right Alternative für Deutschland, say as it stands the existing law enjoys broad acceptance and offers necessary protection to the unborn. They argue that despite being illegal, abortions are accessible and it is extremely rare for them to lead to prosecutions. If the recommendations are acted upon, they have said they will turn to the constitutional court.

The AfD argues for a tightening of the existing law, saying too many abortions now take place. One of its arguments is that Germany would need fewer migrants if the birthrate was higher.

The report, which was published on Monday, emphasized that Germany’s existing law was not compatible with international standards and needed to be modernized.

Leaked to some German media last week, the report included the recommendation that by effectively criminalizing any woman who goes ahead with an abortion, the law is untenable.

“The fundamental illegality of abortion in the early stages of pregnancy is not sustainable,” it read.

The experts said terminations beyond the stage at which a foetus is deemed able to survive outside the womb, which is generally considered to be about 22 weeks, should remain forbidden. It said the onus should be on lawmakers to decide on the specific timeframes, recommending that they follow existing medical and ethical guidelines.

The government is under no obligation to accept the commission’s advice.

Those pushing for a change to the law say the fact that abortion in the early stages of pregnancy is included as paragraph 218 of the penal code means a future government could instigate punishments for terminations relatively easily.

With the AfD, which supports tightening the existing law, rising in the polls in recent months, this danger is more pressing, campaigners say.

They have pointed to developments in other countries, such as the US and neighboring Poland in particular, where abortion rights have become a highly divisive topic, especially since the US supreme court decision in 2022 to abolish the nationwide right to abortion.

On Friday, the Center for Reproductive Rights in Europe welcomed the news that lawmakers in Poland under the new liberal government of Donald Tusk had taken the first step in relaxing the country’s strict abortion rules, including seeking to decriminalize the act.

Supporters of change in Germany have welcomed the initiative by the French president, Emmanuel Macron, for the EU to guarantee a woman’s right to abortion in its charter of fundamental rights, and for France to enshrine abortion as a constitutional right. Lawmakers said the impetus for this initiative was the US supreme court decision.

In 2022, a Nazi-era law in Germany that forbade doctors from advertising abortion services was abolished after attempts by anti-abortion activists to push for the prosecution of some gynecologists’.

A bill is currently making its way through the Bundestag that, if passed, would outlaw the intimidation of people, whether staff or patients, in areas around clinics offering abortion.

This article was amended on 15 April 2024. The bill to outlaw the intimidation of people in areas around clinics offering abortion is currently making its way through the Bundestag, rather than having already been passed as an earlier version said.

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