Germany is a federal republic of 16 states or Laenders, including the former state of East Germany.17 The Laender promulgates legislation, governs, and administers justice.18 The German legal system follows the civil law tradition. Hence, judicial decisions are not a source of law. Although lower courts are not bound by the decisions of the Supreme Court, decisions rendered by the Federal Constitutional Court are binding on all courts.19 The Basic Law,20 which comprises the German Constitution,21 is the supreme law of the land.
HEALTH
Germany has a comprehensive health insurance policy that ensures virtually universal access to a wide range of health services. There are innumerable ways in which laws and policies affect the provision of universal health care. Statutes not only establish and regulate the health sector, but formal policies implemented by the federal and Laender governments also create a complex system through which health care is delivered and obtained.
Financing Health Care
All persons residing within Germany are eligible to receive health insurance.22 Participation in a health plan is often mandatory and can involve health care coverage by either public or private health insurance. The primary types of health insurance are statutory health insurance, private health insurance, and other social security programs, such as accident insurance, welfare, and pensions.23 Statutory insurance schemes provide health coverage for at least 90% of Germans. Another remaining 8% of Germans are covered by private health insurance, and 1% are uncovered.24 In 1989, statutory insurance schemes and private insurance paid 46% and 6%, respectively, of total health care costs.25
The Ministry of Labour and Social Affairs conducts central oversight of health insurance, hospitals, and medical care financing.26 However, the Laender, which implements federal health laws and oversees funding for health insurance, maintains greater authority over these health care matters.27 The national Ministry of Youth, Family Affairs and Health sets standards for regulating medical professions, pharmaceuticals, and maternal and child health centers.28
Statutory Insurance Schemes
Every citizen earning up to a prescribed income must enroll in a statutory insurance scheme known as a "sickness fund."29 In Germany, there are approximately 1,300 statutory sickness funds.30 These funds are quasi-public institutions that are required to transfer money to health care providers from employees and their employers, retirees, and government welfare programs. All sickness fund members contribute the same percentage of their income. No separate or higher contribution requirement exists for family plans.31
The law requires all sickness funds to offer a standard package of benefits, which include: unlimited ambulatory physician care, unlimited hospital care, maternity care, prescription drugs, family planning services, and dental care.32 Sickness funds also oversee administration of medical services by negotiating fees with hospitals and physicians' collectives.33 After negotiating rates, sickness funds directly pay hospitals on a per diem basis. Doctors, dentists, and pharmacists are paid on a fee-for-service basis.34
Low-income persons are exempt from making payments to the health insurance scheme. Patients whose income is less than US$875 in the eastern states and US$1,113 in the western states are not required to contribute to their sickness funds.35 Instead, the premiums are paid out of a national unemployment insurance fund.36 Self-employed individuals, who constitute approximately 4% of sickness fund members, may continue with the sickness funds of their former employers.37 Welfare recipients or persons receiving unemployment compensation constitute 2% of sickness fund members.
Private Insurance
Prosperous Germans - those earning in excess of US$30,000 per year - are permitted to opt out of the statutory health insurance scheme and purchase private health insurance.38 In 1990, approximately seven million Germans were privately insured.39 Although private insurers cover the same services as sickness funds, they supposedly offer subscribers extra physician time.40 But consumers of private insurance generally pay a surcharge for most medical care. For example, consumers of private insurance pay physicians on a government-set fee schedule that is, on average, double the remuneration paid for by sickness fund members. Unlike the statutory insurance scheme, most private insurance policies require subscribers to pay a portion of their outpatient medical costs and may also have high deductibles.
Other Laws and Regulation
Numerous laws regulate various aspects of health care. For example, the Health Structure Act of 1993 regulates the health care system by decreasing prices for pharmaceutical drugs, lowering physicians' fees, and increasing the share of costs borne by patients.41 In addition, the Health Structure Law of 199242 prohibits hospitals from billing all expenses to the public health insurance scheme.43
Reunification Health Laws
Like several other laws, health laws address the need for equalizing health care services between East and West Germany.44 The 1990 Unification Agreement between East and West Germany45 advocates providing sufficient health coverage for all.46 To guarantee that insurees in former East Germany receive the same health services as former West Germans, the Fifth Book of the Social Legislation Code (the "Social Code")47 extends former West Germany's health insurance policies to the new federal states in the East. Moreover, low-income individuals may be exempt from financing health care and are not required to pay a share of the cost of prescriptions.48
Regulation of Physicians
German doctors are regulated by government chartered professional organizations known as physicians' chambers. Physicians who want to remain licensed must be members of the organization. Moreover, physicians are required to follow the codes of professional responsibility promulgated by physicians' chambers. To this end, the federal Medical Profession Law and the Professional Medical Codes of each Laender enumerate doctors' duties.49
FAMILY PLANNING
The Basic Law states that "Marriage and family shall enjoy the special protection of the state."50 Accordingly, the comprehensive health insurance programs described in previous sections provide family planning services, sex education, and related counseling services.51
Specific family planning services are mandated by law. The Social Code sets forth legally required health insurance and states that an insured person should have the right to medical examinations and prescriptions for birth control devices.52 Insurance coverage for legal abortion in specified circumstances, sterilizations, and medical counseling are also mandated. Moreover, insured persons under the age of 20 have a right to procure birth control devices that have been prescribed by a doctor.53 By law, statutory health insurance schemes must also offer family planning services. Sickness funds thus offer reproductive health services, such as pregnancy care, prescription of contraceptives, legal abortions, and sterilizations.54
Family planning laws also emphasize counseling and mandate information that encourages a woman to continue her pregnancy.55 The Family Support Act of 1992 (the "Pregnancy and Family Support Act") - also known as the law on "the protection of prenatal/nascent life"56 - recognizes a right to counseling that includes the right to receive information on sex education, contraception, and family planning.57 The right to counseling includes the right to receive information on subjects such as sex education, existing family-support benefits for children, methods for terminating pregnancy, the physical and psychological effects of pregnancy termination, and the legal and psychological aspects of adoption.58 This law requires the Federal Office of Health Information to provide such counseling free of charge to the individual.59
CONTRACEPTION AND CONTRACEPTIVE TECHNOLOGY
Contraceptive Availability
In Germany, a wide array of contraceptives including oral pills, IUDs, barrier methods, and sterilizations are available.60 As already stated, laws provide for the insurance coverage of specified forms of contraception and recognize a right to information and counseling regarding contraceptives. Most methods of hormonal and intrauterine contraception are available by prescription.61
Regulation
New drugs, including contraceptives, are partly regulated by the Pharmaceuticals Act.62 This law requires new drugs to pass government agency-regulated tests on quality, efficacy, and harmlessness. The act also details safety regulations for production of pharmaceuticals. The Federal Health Office and its corresponding state agencies are responsible for monitoring this process. The Federal Health Office does not require German drug companies to prove that a new drug is better than an existing one.63 The 1978 health reform law, known as "The Second Medication Law," requires efficacy studies for the approval of new drugs.64
ABORTION
Except under specific circumstances, the performance of an abortion is an illegal act.65 Germany's current abortion laws will remain in effect until January 1996. On that date, a new abortion statute becomes effective.
Current Law
The current abortion law in Germany is based upon a 1993 Federal Constitutional Court decision and the Penal Code.66
In May 1993, the Federal Constitutional Court held that because the Basic Law protects the right to life of the unborn,67 even in opposition to its mother, abortion was to be regarded as generally unlawful.68 Recognition of women's constitutional rights, however, requires that abortions be permitted in exceptional circumstances. Legislatures are empowered to stipulate the circumstances under which abortions may be regarded as reasonable.
Although the Federal Constitutional Court struck down a provision permitting abortions during the first 12 weeks of pregnancy, it decided that an abortion is not punishable if performed by a physician within the first 12 weeks after conception and if the pregnant woman asked for the procedure and certified that she had been counseled at least three days prior to the performance of an abortion. The court also determined that abortions for medical and eugenic reasons could be financed by health insurance.
The Penal Code permits an abortion on two primary grounds. First, if a physician determines that the continued pregnancy would endanger the life of the woman or pose injury to her physical and mental health, the physician may perform an abortion with the consent of the woman.69 Second, if a physician determines that the fetus suffers from such irremedial damage that the continuation of the pregnancy cannot be demanded of the pregnant woman, the physician may perform an abortion so long as less than 22 weeks have elapsed since conception.70 In the latter case, the woman must first receive counseling at least three days prior to an abortion and then obtain permission from her doctor or a public health officer.71
Punishments for the performance of illegal abortions vary.72 If the pregnant woman herself performs an illegal abortion, she may be subject to imprisonment of up to one year or a fine.73 However, pursuant to the 1993 Federal Constitutional Court decision, a woman may not be punished for receiving an abortion during 12 weeks after conception if she requested the procedure and received appropriate counseling. Providers who perform an illegal abortion are subject to imprisonment of up to three years or a fine.74 Moreover, providers who attempt to perform an illegal abortion are subject to sanctions.75 Punishments are increased if a perpetrator acts against the will of the woman or if a perpetrator recklessly puts the woman's life in danger or causes serious harm to her health.76
1996 Abortion Law
On July 14, 1995, the German Parliament promulgated a new abortion law, which will take effect on January 1, 1996. Although the performance of an abortion remains illegal, the new law expands the circumstances under which an abortion can be legally performed.
The future abortion law is more liberal than the current one. A woman may have a legal abortion so long as it is performed within the first 12 weeks of pregnancy and she receives counseling from her doctor and from an outside counseling center.77 During the consultations, the doctor must give priority to protecting the "unborn child", while at the same time, allowing the woman to choose.78 In addition, abortion is legal in cases of rape and life and health endangerment.79
The future abortion law provides lesser punishments for the performance of an illegal abortion. Under the new abortion law, neither women who receive nor doctors who perform abortions will be punished, provided the counseling requirement is met.80 If abortions are performed within 12 weeks of conception, the new law does not punish women with imprisonment.81 But physicians who abrogate their duty to counsel will be punished by law up to one year in prison or a US$6,954 fine.82 The law also metes out penalties of up to five years in prison for family members who pressure a woman to terminate a pregnancy.83
Financing Abortions
Legal abortions are covered by the statutory health insurance schemes. The Social Security Code provides insured persons with the right to reimbursement for legal abortions performed in a hospital or other designated institution.84 When a legal abortion is performed, the statutory insurance scheme covers medical counseling, examinations, treatment, hospital stay, and the provision of medication.85 These schemes also enable low-income women access to legal abortion services.86
STERILIZATION
No laws in Germany prohibit voluntary sterilization. Sterilization appears to be permitted for all who are not minors as long as they are able to understand the implications of the procedure.87
Laws specifically address sterilization in the context of providing protection against coercion. The Basic Law states that "everybody has the right to life and physical integrity."88 Accordingly, the Penal Code states that if "bodily harm committed on the victim results in the loss of an important part of his body,...or his procreative capacity,...imprisonment from one to five years shall be imposed."89
A new guardianship law (the "Care Law") regulates sterilization of children and mentally incapacitated women.90 Neither parents nor their child can consent to sterilization for the child.91 For mentally retarded or incapacitated persons, the Care Law permits guardians to consent to sterilization only if: this procedure is not "against the wishes of the person in care"; the incapacitated person is permanently unable to give consent; not performing the sterilization may result in pregnancy, which cannot be prevented by other "reasonable methods"; or a woman's life or health is seriously threatened because of pregnancy.92 The law requires a two-week waiting period before a sterilization can be performed and explicitly sets forth its preference for reversible methods of sterilization.93
The Social Code governs insurance coverage for legal sterilizations.94 Insured persons undergoing such a procedure are guaranteed counseling, medical exams, medicine, and hospital care coverage. If a person is unable to work as a result of the performance of a legal sterilization, she is entitled to sickness benefits.95
STDs and HIV/AIDS
National Law
STDs are dealt with by the Federal Venereal Disease Control Act of 1953 (the "Venereal Disease Act"),96 which focuses on syphilis, gonorrhea, chancroid, and lymphogranulomatosis.97 The Venereal Disease Act attempts to maintain strict regulation of such diseases by imposing reporting and notification requirements and mandating medical treatment.98 Moreover, so long as a disease is transmittable, the law prohibits those suffering from the disease from breast-feeding, sexual intercourse, and professional activities with risks of transmission.
STDs also fall within the scope of the 1961 Federal Epidemics Control Act (the "Epidemics Act).99 Pursuant to the Epidemics Act, all communicable diseases are subject to the authority of the Public Health Service which is empowered to undertake any action necessary for the prevention and control of any communicable diseases. The Epidemics Act calls for examinations and surveillance of infected persons who may be isolated or whose activities may be restricted.100
No AIDS-specific laws exist in Germany. The Epidemics Act and the Venereal Disease Act are not regarded as being applicable to regulating AIDS.101 Moreover, laws do not protect individuals against discrimination on the basis of their AIDS status.102 However, Articles 1 and 2 of the Basic Law enshrine a constitutional right to privacy. In 1983, the Federal Constitutional Court officially recognized this right,103 and subsequently, this right to privacy has been used to protect an HIV-positive person's right to control disclosure and use of personal information.104
Although the Penal Code does not contain a provision that pertains specifically to AIDS, transmission of AIDS may be a considered a form of dangerous bodily harm that is subject to criminal sanctions.105 Thus, according to a 1988 Supreme Court decision, if a person who knows about his or her HIV-positive status transmits the virus through sexual intercourse, he or she may be subject to a penalty of up to five years imprisonment.106
National Policy
In 1987, the Federal Ministry of Health developed a three-pronged HIV/AIDS policy107 based on the principle that information and education should take precedence over epidemic control. Federal AIDS policy thus emphasizes protection, counseling and care for infected persons, and prevention of discrimination on the basis of HIV and AIDS status.108 Germany's HIV/AIDS policy includes utilizing the mass media to disseminate messages about safe sex.109 Schools also encourage AIDS education.110 Although no federal laws mandate AIDS testing, the federal government strongly recommends voluntary testing.111
SAFE MOTHERHOOD
National Law and Policy
The German government encourages families to have children.112 Women are provided with excellent health care and other benefits.113 The statutory insurance schemes offer women benefits related to pregnancy, maternity, and nursing care.114 Apart from the basic medical coverage offered by all sickness funds, some sickness funds also offer prenatal care and early detection of venereal diseases.115 A key component of such benefits is 14 weeks of paid maternity leave. Under the law, six weeks are taken off before birth and eight weeks afterward.116
The government provides monetary benefits to parents.117 The government offers a parent the option of an 18-month postnatal leave, during which time the parent receives an allowance of approximately US$417 per month and is protected from dismissal from employment.118 In addition, pursuant to the German Federal Law on Financial Support for Rearing Children, the government provides for child rearing by paying allowances to the parent raising the child, until the child is two years old.119 The government also pays monthly benefits for each child; such benefits correspond to a couple's income and the number of children they have.120
Pregnant civil workers enjoy further government protection. The Maternity Protection Ordinance for Female Civil Servants specifies what type of work a pregnant woman who is a civil worker may do.121 For example, this law prohibits pregnant women from participating in heavy work involving excessive standing and physical strain, such as the operation of heavy machinery and conveyer belts. Moreover, neither a pregnant woman nor a woman who is breast-feeding should be exposed to potentially dangerous substances or environments such as dust, vapors, and unsafe surfaces.
RAPE
The Penal Code regards as a crime the physical coercion of a married woman to engage in extramarital sexual intercourse. This crime is punishable by at least two years of imprisonment.122 If the perpetrator recklessly causes the death of the woman, then the punishment is at least five years in prison.123 Furthermore, sexually abusing a woman by having extra-marital sexual intercourse with her may be punishable with one year to ten years in prison.124 In Germany, marital rape is not regarded as a crime.
OTHER REPRODUCTIVE HEALTH MATTERS
Germany's legal restrictions on assisted fertilization and surrogacy may be among the strictest in the world.125 The Adoption Arrangements Act126 was amended to prohibit surrogate motherhood as well as all advertising relating to such agreements.127 The amended law specifically states that "surrogate-motherhood arrangements shall be prohibited."128 Hence, transferring an embryo to another woman is prohibited. Artificial insemination is also prohibited in these cases.129 Cloning, the production of hybrids and chimeras, and extra-corporeal fertilization for sex selection is forbidden.130 Under the Embryo Protection Law,131 conducting research on human germ cells after the fusion of nuclei and engaging in the extra-corporeal production of an embryo for any other purpose than inducing a pregnancy are illegal. Such offenses carry a penalty of three years in prison.132
In vitro fertilization of the embryos of the same woman is permitted. Insemination by donors is acceptable only for purposes of remedying sterility. For sterile married couples the costs of certain treatments for extra-corporeal fertilization are reimbursed.133 Otherwise, a woman is required to pay for additional attempts to be fertilized.
PATIENT'S RIGHTS
Medical Malpractice
In Germany, patients may allege monetary damages - associated with pain, suffering, and loss of income - for claims of malpractice or substandard care. German doctors lose their medical licenses only if they are convicted of a crime or become disabled. On the whole, there does not appear to be a high incidence of disciplinary measures relating to malpractice.134
Right to Informed Consent
The German doctrine of informed consent requires doctors to prove that a patient has undertaken an action based upon comprehension of the information provided by the doctor.135 The right to informed consent is further promoted by several laws that explicitly require counseling. For example, the Family Support Law states that "every man and woman has the right to receive...information and counselling from an appropriate counselling center...."136
Notes
1. THE WORLD BANK, WORLD DEVELOPMENT REPORT 1994, 163 (1994) [hereinafter WORLD DEVELOPMENT REPORT 1994].
2. COUNCIL OF EUROPE, RECENT DEMOGRAPHIC DEVELOPMENTS IN EUROPE 121 (1994) [hereinafter RECENT DEMOGRAPHIC DEVELOPMENTS IN EUROPE].
3. FACTS ABOUT GERMANY 12 (Dr. Arno Koppler et al., eds; Gerard Finan, trans., 1993) [hereinafter FACTS ABOUT GERMANY].
4. WORLD DEVELOPMENT REPORT 1994, supra note 1, at 163. Note that on August 11, 1994, the relevant currency exchange rate was: 1.438 Deutsch Mark ("DM") per U.S. dollar. THE WALL STREET JOURNAL, August 14, 1995, at C23.
5. Id. at 219.
6. Id.
7. RECENT DEMOGRAPHIC DEVELOPMENTS IN EUROPE, supra note 2, at 35.
8. DEPARTMENT FOR ECONOMIC AND SOCIAL INFORMATION AND POLICY ANALYSIS, UNITED NATIONS, ABORTION POLICIES: A GLOBAL REVIEW, VOLUME II, GABON TO NORWAY 24 (1993).
9. RICHARD KNOX, GERMANY'S HEALTH CARE SYSTEM: ONE NATION, UNITED WITH HEALTH CARE FOR ALL 247 (1993).
10. FACTS ABOUT GERMANY, supra note 3, at 362.
11. B.J. Oddens et al., Contraception in Germany: A Review, 9 ADVANCES IN CONTRACEPTION 108-109 (June 1993) [hereinafter Contraception in Germany].
12. Id. at 106, 108.
13. Id. at 108-109.
14. Francine S. Kiefer, In Defeat for Kohl, Germany Adopts Liberal Abortion Law, CHRISTIAN SCIENCE MONITOR, June 29, 1995, at 3.
15. Deutsche AIDS-Hilfe, 7 AIDS-FORSCHUNG 557-60 (no date) cited in AIDS Statistics for European Countries, OPEN FILE (International Planned Parenthood Federation, London), February 1993 at 10.
16. Günter Frankenberg, "In the Beginning of all the World was America": AIDS Policy and Law in West Germany 23 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 1085 (1991).
17. FACTS ABOUT GERMANY, supra note 3, at 362.
18. PRESS AND INFORMATION OFFICE, FEDERAL GOVERNMENT OF GERMANY, GERMANY: CONSTITUTION AND LEGAL SYSTEM 36 (Gerard Finan, trans., November 1993) [hereinafter GERMANY: CONSTITUTION AND LEGAL SYSTEM].
19. The Federal Constitutional Court is the "supreme guardian of the Basic Law. Its Decisions are final and binding on all courts. Indeed, no other court, not even a high federal court, is empowered to declare a statute unconstitutional, for this power is reserved exclusively to the Federal Constitutional Court." Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 EMORY LAW JOURNAL 840 (1991).
20. GRUNDGESETZ (Constitution/Basic Law for the Federal Republic of Germany, 23 May 1949 (as amended to December 20, 1993) [hereinafter CONSTITUTION].
21. GERMANY: CONSTITUTION AND LEGAL SYSTEM, supra note 18, at 14.
22. KNOX, supra note 9, at 46.
23. MILTON I. ROEMER, NATIONAL HEALTH SYSTEMS OF THE WORLD, VOLUME I: THE COUNTRIES 133 (1991).
24. Karsten Schroeder, The Statutory Health Insurance Scheme: Fundamentals of German Health Service, IN PRESS SOCIAL REPORT, September 1994, at 2. (Shashi Batra, trans.).
25. KNOX, supra note 9, at 53.
26. ROEMER, supra note 23, at 131.
27. Id.
28. Id. at 130.
29. In 1991, citizens earning DM 50,000 (or US$36,270 in 1991 currency exchange rates) must enroll in a sickness fund. KNOX, supra note 9, at 13.
30. GERMAN INFORMATION CENTER, HEALTH CARE IN GERMANY 2 (January 1994) [hereinafter HEALTH CARE IN GERMANY].
31. KNOX, supra note 9, at 56.
32. HEALTH CARE IN GERMANY, supra note 30, at 14.
33. KNOX, supra note 9, at 56.
34. ROEMER, supra note 23, at 133.
35. Schroeder, supra note 24, at 2. These figures translate into DM 1,232 in the eastern state and DM 1,568 in the western state.
36. KNOX, supra note 9, at 58.
37. Id. at 59.
38. Id. at 75.
39. Id.
40. Id. at 76.
41. Karsten Schröder, The Statutory Health Insurance System: The Basis of the German Public Health Service, IN PRESS, SOCIAL REPORT, June 1992, at 16 ([hereinafter Schröder 1992].
42. Law of 21 December 1992 on the safe provision and structural improvement of health insurance prescribed by law (The Health Sector Structural Law). Bundesgesetzblatt, Part I, 29 December 1992, No. 59, 2266-2334) [hereinafter Health Structure Law]. 44 INTERNATIONAL DIGEST OF HEALTH LEGISLATION 582 (1993).
43. Schroeder, supra note 24, at 5.
44. When East and West Germany were re-unified on October 3, 1990, East Germany became subject to most of West Germany's laws, including the Basic Law. Gesetz zu dem Vertrag vom 31 August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demoktratischen Republik über die herstellung der Einheit Deutschland - Einigungsvertragsgesetz - und der vereinbarung von 18 September 1990. (Law of 23 September 1990 on the treaty of 31 August 1990 between the Federal Republic of Germany and the German Democratic Republic on the establishment of German unity - The Unification Treaty Law - and the Agreement of 18 September 1990) (Bundesgesetzblatt, Part II, 28 September 1990, No. 35 885-1245).
45. Id.
46. Id.
47. Sozialgesetzbuch (SGB V/1) § 24(b) Kommentar Band III, Stand: 1 Marz 1995 [hereinafter SOCIAL CODE].
48. Schroeder, supra note 24, at 2.
49. KNOX, supra note 9, at 86.
50. CONSTITUTION, supra note 20, at Article 6(1).
51. The new abortion law states that it is the duty of Federal and Laender governments to improve sex education. See Articles 1 and 2 of the Pregnancy and Family Support Act of 1992. Bundesgesetzblatt Nr. 37, August 4, 1992 at 1398 in 43 INTERNATIONAL DIGEST OF HEALTH LEGISLATION 740 (1992) [hereinafter Pregnancy and Family Support Act]. Funding for sex education is DM 6 million/yr. Joachim von Baross, The "Yo-Yo" Effect of Public Family Planning Funding in Germany, 23 Planned Parenthood in Europe 6 (March 1994).
52. SOCIAL CODE, supra note 47, at § 24a(1).
53. Id. at § 24a(2).
54. Joachim von Baross, supra note 51, at 5.
55. Id.
56. Pregnancy and Family Support Act, supra note 51.
57. Id. at § 2(1).
58. Id. at § 2(2).
59. Id. at § 1(3).
60. See generally, Contraception in Germany, supra note 11.
61. Jürgen Hammerstein, Reproductive Medicine - A Field of Contradictory Legislation in Germany, 69 FORENSIC SCIENCE INTERNATIONAL 317 (Dec. 1994).
62. FACTS ABOUT GERMANY, supra note 3, at 354.
63. KNOX, supra note 9, at 204.
64. Id. at 202.
65. A 1992 bill legalizing abortion in Germany was struck down by the Constitutional Court in 1993. The proposed law was an attempt to consolidate the abortion laws of East and West Germany. In contrast to West Germany's restrictive law on abortion, East Germany allowed abortion on demand in the first trimester. See Parties Agree to Compromise on Changes in German Abortion Bill, Associated Press, International News, June 26, 1995, available in LEXIS, NEXIS Library, Allnews Library, Textline File [hereinafter Compromise on Changes in German Abortion Bill]. Until the new law takes effect, the Federal Constitutional Court's provisional ruling on abortion is still in effect.
66. Strafgesetzbuch §§ 218 - 219b, of which § 218a (1), and § 219 were struck out by the Constitutional Court on May 28, 1993. Das Deutsche Bundesrecht, August 1993 [hereinafter PENAL CODE].
67. The court interpreted Article 1 of the Basic Law to protect human life of the unborn. ("The dignity of man is inviolable. To respect and protect it shall be the duty of all public authority.")
68. Beschlu¤ des Bundersverfassungsgerichts vom. 28 Mai 1993 - 2BvF 2/90 (BGBI. I S 820). (Decision of the Second Senate, German Constitutional Court of May 28, 1993).
69. PENAL CODE, supra note 66, at § 218a(1).
70. Id. at § 218a(3).
71. Id.
72. Id. at §218(1).
73. Id. at § 218(3).
74. Id. at § Section 218(1).
75. Id. at § 218(4).
76. Id. at §§ 218(2)(1) and (2).
77. Arthur Allen, Five Years After Unification, An All German Abortion Law, in Associated Press, International News July 14, 1995, available in LEXIS, Nexis Library, Allnews Library, Textline File.
78. Germany Abortion Reform Plan, THE FINANCIAL TIMES, June 30, 1995, at 2 [hereinafter Germany Abortion Reform Plan].
79. Germany: Abortion Compromise Clears Final Hurdle, International Briefing, The Abortion Report, American Political Network, July 19, 1995, available in LEXIS, Nexis Library, Allnews Library, Textline File.
80. Id.
81. Compromise on Changes in German Abortion Bill, supra note 65.
82. PENAL CODE, supra note 66, at § 218 c (effective January 1, 1996) imposes a fine of DM 10,000. The figure in the text has been converted at current rates. See THE WALL STREET JOURNAL, supra note 4. Counselling entails explaining the risks involved with having an abortion and allowing the woman an opportunity to present her reasons for requesting an abortion.
83. Compromise on Changes in German Abortion Bill, supra note 65.
84. SOCIAL CODE, supra note 47, at § 24b(1).
85. Id. at § 24b(2).
86. Germany Abortion Reform Plan, supra note 78.
87. Hammerstein, supra note 61, at 318.
88. CONSTITUTION, supra note 20, at Article 2, (2).
89. PENAL CODE, supra note 66, at Article 224.
90. Act for the Reform of the Act on the Guardianship and Curatorship of Adults (the Care Act), September 12, 1989 (Bundesgesetzblatt, Part I, No. 48, 21 September 1989, 2002-2027), 16 ANNUAL REVIEW OF POPULATION LAW 19-20 (1992).
91. Id.
92. Id.
93. Id.
94. SOCIAL CODE, supra note 47, at § 24(b).
95. The Pregnancy and Family Support Act, supra note 51, at Article 2.
96. Gesetz zur Bekampfung der Geschlechtskrankheiten vom July 23, 1953, BGBl.I 700. (Multiple Amendments). See Frankenberg, supra note 16, at 1081 n. 6.
97. Günter Frankenberg, Germany: The Uneasy Triumph of Pragmatism, in AIDS IN THE INDUSTRIALIZED DEMOCRACIES: PASSIONS, POLITICS, AND POLICIES 108 (David L. Kirp, et al., eds. 1992) [hereinafter Frankenberg 1992].
98. Id. at 108. Legal sanctions under this law apply only against persons whose diseases are medically treatable, and not against those whose infections are not curable.
99. Gesetz zur Verhutung und Bekampfung ubertragbarer Krankheiten beim Menschen (Bundes-Seuchengesetz) vom. July 18, 1961. Bundesgesetzblatt, Part I, 1012, 1300, Neufassung (Revised Version) vom Dec. 18, 1979. See Frankenberg, supra note 16, at 1079, n. 2.
100. Frankenberg 1992, supra note 97, at 108.
101. Id. at 125. The Constitutional Court, allowing for distinctive treatment of HIV and AIDS cases, has ruled that neither the Epidemics Act nor the Venereal Disease Act properly governs those infected with AIDS.
102. Id. at 124.
103. Id. at 124. Only a "compelling state interest" may outweigh the right to informational privacy. Thus far, this privacy right has helped overturn proposals for mandatory testing and reporting of AIDS, as well as secret AIDS testing in hospitals.
104. Id.
105. PENAL CODE, supra note 66, at Article 223a.
106. Entscheidungen des Bundesgerichtshofes in Strafsachen. (BGHSt) 36. Band. 1990. 1. Strafsenat. Urt. vom. 4 November 1988 g. B. 1 StR 262/88. See also Id. at Article 223a §2. An attempt to endanger another's life is also punishable. Five year sentencing occurs pursuant to §223a(1) of the Penal Code. If the disease does not get transmitted, he/she is still punishable for attempt under § 223a(2) of the Penal Code.
107. Frankenberg, supra note 16, at 1089.
108. Id.
109. Piotr Cywinski, Close Cooperation between AIDS Centres, IN PRESS, SOCIAL REPORT, 1990, at 13 (Malcolm Bell, trans.).
110. Id. at 14.
111. Frankenberg, supra note 16, at 1096.
112. Michael Meyer, Be Kinder to Your "Kinder," NEWSWEEK, (December 16, 1991), at 43.
113. One For All, All For One: German System of Social Security. IN PRESS, SOCIAL REPORT, March 1995, at 11 (Klaus Stahl, ed., Shashi Batra, trans.) [hereinafter One For All, All For One].
114. Pregnancy and Family Support Act, supra note 51, at § 1-4. See also Schröder 1992, supra note 41.
115. Schröder 1992, supra note 41, at 2.
116. Jonas Weiss, Health Care. No Longer From Cradle to Grave in Sweden, EUROPE, April 1993, at 15.
117. One For All, All For One, supra note 113, at 28.
118. Martina I. Kischke & Karsten Schröder, Equal Rights - But Also Equal Opportunities?: The situation of women in the Federal Republic of Germany, IN PRESS, SOCIAL REPORT, March 1990, at 6. In other words, parents receive DM600 per month during the 18-month leave.
119. Second Law of 6 December 1991, amending the Federal Law on Financial Support for rearing children and other laws, (Sammelblatt, Vol. 43, No. 3, 17 January 1992, pp. 89-92), translated in 18 ANNUAL REVIEW OF POPULATION LAW 72 (1993).
120. See One for All, All for One, supra note 113.
121. Bekanntmachung der Neufassung der Muttershcutzverordnung vom 11. Januar 1991 §§ 1,2,3,4,4a,5,6,7,8,10, and 11. 5 Tag der Ausgabe 125. Reform of the Maternity Protection Ordinance of January 11, 1991.
122. PENAL CODE, supra note 66, at Article 177(1).
123. Id. at Article 177(3).
124. Id. at Article 179(2).
125. Political and Religious Leaders Take Up Debate on In Vitro Fertilization of Older Women, THE WEEK IN GERMANY, January 21, 1994, at 6.
126. The Adoption Arrangements Act, 27 Nov. 1989. (Bundesgesetzblatt, Part I, No. 54, 30 Nov. 1989, 2014).
127. 16 ANNUAL REVIEW OF POPULATION LAW xl (1992).
128. §13c Adoptionsvermittlungsgesetz, 1995, Das Deutsche Bundesrecht (German Federal Law); and Embryo Protection Law of Dec. 19, 1990, § 1 (1) 7, (Bundesgesetzblatt, Pt. I, 19 Dec. 1990, pp. 2746-2748), translated in 42 INTERNATIONAL DIGEST OF HEALTH LEGISLATION 60 (1991).
129. § 1(1) Embryo Protection Law of Dec. 19, 1990, Bundesgesetzblatt, Pt. I, 19 Dec. 1990, 2746-2748.
130. Hammerstein, supra note 61, at 316.
131. Law of 13 Dec. 1990 (the Embryo Protection Law), Bundesgesetzblatt, Pt. I, 19 Dec. 1990, pp. 2746-2748, translated in 42 International Digest of Health Legislation 60 (1992).
132. Hammerstein, supra note 61, at 316; Embryo Protection Law of Dec. 13, 1990 § 1(2), 2.
133. Hammerstein, supra note 61, at 316.
134. KNOX, supra note 9, at 130.
135. Judgement, High Regional Court, Düsseldorf, 12 October 1989. (Neue Juristische Wochenscrift, No. 12, 1990, at 771-772), translated in 16 ANNUAL REVIEW OF POPULATION LAW 21 (1992).
136. Pregnancy and Family Support Act, supra note 51, at § 2(1).
Annual Reports
