The designation of a pregnant person as a ‘mother’ from the moment of conception under German law denies women the dignity and autonomy usually accorded to a human being. It provides an ideological justification for the prohibition of abortion, and is used to rationalise the pervasive violation of women’s health and reproductive rights. In order to uphold its commitments to equality under domestic and international law, Germany must decriminalise abortion.
The Legal Landscape
German law defines a mother as the woman who gave birth to the child. However, in legal texts dealing with pregnancy termination, pregnant women are consistently referred to as “the mother” and thus held to have particular duties vis-à-vis a ‘child’. The primary consequence drawn from this assigned role is the fundamental obligation to carry a pregnancy to term. This duty is protected by a general prohibition on abortion. Following a Federal Constitutional Court decision in 1975, abortion procedures remain illegal. However, a woman is in effect exempt from punishment, provided that within the first trimester she undergoes specific counselling and lets pass a waiting period of three days.
The current legal framework with respect to abortion is in conflict with the international law standards to which Germany is subject. Under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), states have a duty to provide equal access to health care services including those related to family planning, as well as equal rights to decide on the number and spacing of children. In its general recommendations, the CEDAW Committee held that state refusal to legally provide for the performance of certain reproductive services for women constitutes discrimination. The Committee has called for states to provide adequate sexual and reproductive health services and to address the concerns raised by civil society about the criminalisation of reproductive treatments. Reports by human rights agencies have criticised ‘forced pregnancy’ as well as laws that exclusively or disproportionately criminalize action by women. By failing to allow legal termination of pregnancies, Germany is in contravention of both the health rights specified in international law and the broader principles that inform their implementation.
The ideological switch from woman to mother is used to justify a legal framework in which the unborn, otherwise considered a non-person, is afforded rights which supersede those of a woman. A pregnant woman is seen to no longer exists independently of her ‘child’, and the value given to her rights suffers accordingly. Essentially, upon conception a woman ceases being a distinct person and becomes merely a vessel for the production of a child. Thus, the supposed right to life of the foetus is given a higher level of protection than the rights to health, dignity and autonomy of the woman. This is a manifestation of a politically constructed reality in which the most important function of a woman is her ability to bear children. This patriarchal perspective is clearly evident in the ratio decidendi offered by the Federal Constitutional Court in its upholding of the ban on abortion: the court refers to the “unique relationship between mother and child” and defends the prohibition of termination on the grounds of “a duty of an intensive nature, affecting the woman’s very existence: a duty to carry and bear the child.” The obvious implication is that the sole reason for a woman’s existence is to give birth. Consequently, a pregnant woman’s status is reduced from full humanity to that of a walking womb whose rights can simply be disregarded or given secondary consideration.
Consequences of Criminalisation
Despite a policy of not enacting legal sanctions under specific circumstances, abortion is prima facie a crime. By defining abortion as a criminal offence, German law condemns ending a pregnancy at any stage and for any reason as morally abhorrent. Thus, the question of whether to carry to term is relocated from a legitimate choice to a moral transgression. The law stipulates a ‘right’ decision, deviation from which is an unacceptable refusal by a woman to accept her ‘natural role’ as mother. This punitive approach and the stigmatization of women who seek abortions has a serious and harmful effect on the mental health of all women. Moreover, the criminalisation of abortion constitutes a violation of the right to equality by imposing unequal restrictions on the liberty of women. The prohibition of reproductive self-determination denies women bodily autonomy, reinforcing subjugating relationships of power in which authority over the bodies of women rests with the state. The fact that a woman can be conscripted into rendering a bodily service based on criteria “unrelated to her own priorities and aspirations”, for the sake of the state’s interest in the unborn, means women are forced into a position of subordination relative to the state and to the foetus itself. To avoid criminal sanction, a pregnant woman must undergo counselling to remind her of the rights of the foetus and encourage her to fulfil her role as mother. In any other circumstance, such attempts to influence the free choices of a competent adult would be considered unacceptable. However, as the image of a ‘mother’ killing her ‘child’ is more emotionally evocative than that of a woman terminating a pregnancy, such drastic interference in a woman’s autonomy is rendered more palatable.
Women’s Rights, Human Rights
Human rights schemes as they are currently implemented do not accord women equal status. The way in which rights are protected frequently excludes women’s specific experiences, especially in areas such as health. In particular, the human rights of women are restricted by social expectations of what behaviour is “proper” for women. The idea of women as primarily mothers evident in German law is a poignant example of the influence such constraints can have on the protection of rights. The UN Special Rapporteur on health makes clear that “criminal laws penalizing and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realization of women’s right to health”. Similarly, in the US it has been held that the denial of legal abortion detracts from “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship.” Upholding the general right to equality involves combatting sex role stereotyping and the inequalities ingrained in cultural patterns. In order to move beyond a token commitment to the substantive equality of women,
Germany must acknowledge women as individuals and end its paternalistic denial of their autonomy and dignity.