Abortion,

a matter of life and death. An EU concern?

Sarah Goeres (i469254)

Bacheloressay 2009/2010 For the bachelors European Law School & Rechtsgeleerdheid Under supervision of Rankie ten Hoopen Word CCount: 24.955 words exclusive footnotes, table of content and references Word ount: .

U n i v e r s i t e i t M a a s t r i c h t F a c u l t y o f L a w

Table of Content
INTRODUCTION ............................................................................................................................. 3 CHAPTER I ASPECTS OF ABORTION: DEFINITION, HISTORY AND METHODS........ 5 1 WHAT IS ABORTION ................................................................................................................................. 5 2 SHORT HISTORY OF ABORTION ............................................................................................................. 5 3 METHODS ................................................................................................................................................... 6 3.1 Non-surgical Abortion or Medical Abortion.........................................................................6 3.2 Surgical Abortion .............................................................................................................................7
3.2.1 Vacuum Aspiration, ................................................................................................................................................ 7 3.2.2 Dilatation and Curette,, ......................................................................................................................................... 7 3.2.3 Dilatation and Evacuation, .................................................................................................................................. 8 CONCLUSION .............................................................................................................................................. 8

CHAPTER II THE NETHERLANDS........................................................................................... 9 1 INTRODUCTION ......................................................................................................................................... 9 2 THE ABORTION RULES IN THE NETHERLANDS................................................................................... 9 2.1 History...................................................................................................................................................9 2.2 Illegal Abortion and Rules in Criminal Law....................................................................... 10 2.3 Legal Abortion, the Wet Afbreking Zwangerschap and its Aspects ........................ 11 2.4 Abortion Clinics and Costs ......................................................................................................... 15 2.5 Evaluations and trends............................................................................................................... 16
2.5.1 2.5.2 2.5.3 Numbers of Abortion ..........................................................................................................................................16 Gestational Age......................................................................................................................................................16 Country of Origin ..................................................................................................................................................16 2.3.1 2.3.2 General Information............................................................................................................................................11 Aspects of the Wet Afbreking Zwangerschap and abortions beyond its scope.........................12 2.2.1 2.2.2 Article 82a in Conjunction with Article 287 of the Dutch Penal Code...........................................10 Article 296 of the Dutch Penal Code.............................................................................................................11

2.6 Women on Waves: The Abortion Ship .................................................................................. 17 3 CONCLUSION ............................................................................................................................................18 CHAPTER III BELGIUM ............................................................................................................ 19 1 INTRODUCTION .......................................................................................................................................19 2 THE ABORTION RULES IN BELGIUM ...................................................................................................19 2.1 History................................................................................................................................................ 19 2.2 Illegal Abortion and the Rules in Criminal Law............................................................... 21 2.3 Legal abortion, the Wet Betreffende de Zwangerschapsafbreking......................... 21
2.3.1 General Information............................................................................................................................................21 2.3.2 Aspects of the Wet Betreffende de Zwangerschapsafbreking Contained in Article 350 Belgian Penal Code ...............................................................................................................................................21 2.2.1 2.2.2 Article 350 of the Belgian Penal Code..........................................................................................................21 Article 351 of the Belgian Penal Code..........................................................................................................21

2.4 Abortion Clinics and Costs ......................................................................................................... 25 2.5 Evaluations and trends............................................................................................................... 26
2.5.1 Numbers of Abortion ..........................................................................................................................................26 2.5.2 Gestational Age......................................................................................................................................................27 2.5.3 Flanders, Walloon and Foreign Countries of Origin..............................................................................27 CONCLUSION ............................................................................................................................................27

CHAPTER IV GERMANY........................................................................................................... 29 1 INTRODUCTION .......................................................................................................................................29 2 THE ABORTION RULES IN GERMANY ..................................................................................................29 2.1 History................................................................................................................................................ 29 2.2 Illegal Abortion and the Rules in Criminal Law............................................................... 31
2.2.1 218 of the German Penal Code .....................................................................................................................31

2.3 Legal Abortion According to the German Penal Code and Other Legislations... 31 2.4 Abortion Clinics and Costs, ........................................................................................................ 35 2.5 Evaluations and trends............................................................................................................... 36
2.5.1 Numbers of Abortion ..........................................................................................................................................37 2.5.2 Gestational Age......................................................................................................................................................37 2.5.3 Old Bundeslnder, new Bundeslnder, Berlin and Foreign Countries of Origin ......................37 CONCLUSION ............................................................................................................................................38 2.3.1 2.3.2 General Information............................................................................................................................................31 Aspects of the Legal Abortion .........................................................................................................................31

CHAPTER V LEGAL COMPARISON OF ABORTION RULES IN THE NETHERLANDS, BELGIUM AND GERMANY.......................................................................................................... 39 1 INTRODUCTION .......................................................................................................................................39 2 THE ABORTION RULES ..........................................................................................................................39 2.1 History................................................................................................................................................ 39 2.2 Illegal Abortion and Rules in Criminal Law....................................................................... 39 2.3 Legal Abortion ................................................................................................................................ 40 2.4 Abortion Clinics and Costs ......................................................................................................... 42 2.5 Evaluations and trends............................................................................................................... 43
2.5.1 Numbers of Abortion ..........................................................................................................................................43 2.5.2 Gestational Age......................................................................................................................................................43 2.5.3 Country of Origin ..................................................................................................................................................44 CONCLUSION ............................................................................................................................................44 2.3.1 2.3.2 General Information............................................................................................................................................40 Aspects of the Abortion Rules.........................................................................................................................41 2.2.1 Penal Codes .............................................................................................................................................................40

CHAPTER VI THE EUROPEAN UNION ................................................................................. 46 1 INTRODUCTION .......................................................................................................................................46 2 LEGAL ACTS OF THE UNION..................................................................................................................46 2.1 Background Information ........................................................................................................... 46 2.2 Legal Basis: General Information........................................................................................... 47 2.3 Legal Basis: Abortion Legislation........................................................................................... 47 3 EVOLUTIONS AND TRENDS ...................................................................................................................48 3.1 Resolution of the European Parliament 2002 .................................................................. 48 3.2 Right to life....................................................................................................................................... 49 3.3 Other evaluations .......................................................................................................................... 51
3.3.1 Refusing treatment based on conscience...................................................................................................51 3.3.2 Example of doctors viewpoint ........................................................................................................................51 3.3.3 Forum shopping ....................................................................................................................................................52 CONCLUSION ............................................................................................................................................52 3.2.1 Right to life based on ECHR compared to the Netherlands, Germany and Belgium ...............50

CHAPTER VII REFLECTIONS.................................................................................................. 54 1 NO LEGAL BASIS .....................................................................................................................................54 2 ACTIONS OF THE EUROPEAN PARLIAMENT .......................................................................................54 3 ACTIONS OF THE COUNCIL OF EUROPE ..............................................................................................55 4 TIME LIMITS AND ITS EFFECTS ............................................................................................................55 5 PREVENTIVE HEALTH CARE .................................................................................................................55 6 CONCLUSION ............................................................................................................................................56 CHAPTER VIII CONCLUSION.................................................................................................. 57 CLOSING REMARKS ..................................................................................................................... 61 REFERENCES ................................................................................................................................. 62 2

Introduction
Abortion. It is not just a word, it is a philosophy of life, a decision between life and death made for an unborn human being. Being a girl can be complicated and goes along with a lot of questions. One of the questions raised during a girl-to-girl talk was about abortion, more specific, about the countries in which an abortion would be legal. This led me to do some research about that topic. I came to the conclusion that the media is talking about abortion more than ever before. Crown Prince Willem Alexander of the Netherlands (*1967) and King Boudewijn of Belgium (*1930 1993) had a lot of disagreements but, nevertheless, conferring to abortion, they both mentioned that they would not voluntarily sign laws against which they have moral objections.1 Furthermore, a German bishop, Walter Mixa (*1941), compared abortion with the holocaust.2 These are some of the many impressions one will get while surfing the Internet or browsing journals about this topic. Nevertheless, abortion, euthanasia and assisted suicide are all subjects one does not like to talk about. There is some kind of taboo on those themes. These taboos however, need to be clarified and will on the long-term become subjects that have to be dealt with. While doing research on these taboo themes, I noticed that nearly all European Union Member states have different or even no rules about abortion, assisted suicide or euthanasia. Neither is there EU legislation. In my essay I will focus on one of the taboo topics mentioned above, namely abortion. The word abortion in this sense is referring to induced abortion and not to spontaneous abortion also known as miscarriages. However I would like too, it will not be possible to deal with all three topics since that would go beyond my scope. My essay will not only be descriptive, it will also be comparative and reflect, to some extent, my own opinion and conclusions about this topic. During my research I figured out that not al EU-states have the same abortion rules. This is the background reason for the decision to base my findings on a comparison of three countries. Germany, the country of which I have the nationality, Belgium, were I grew up and the Netherlands, the country I choose to study in. However, the choice for these three countries was not only because of my personal relationship. Belgium, Germany and the Netherlands are neighbouring countries and even though one would expect the law to be almost the same, there are differences. This makes a comparison of those three countries also interesting for persons not having any connection to those Member States. In my essay, I would like to find out whether it would be possible and likely for the European Union to establish a piece of legislation to equalize the abortion rules within this organisation Chapter VI. To get a clear picture about what the answer to my main research question would be, I will have to deal with some sub-questions. First, a clear understanding about the legal background of abortion in every country is needed. After having placed abortion in a legal perspective, several questions concerned the aspects of the abortion rules must be answered. Those aspects go from different time limits over Articles in Penal Codes to specific abortion rules etcetera. Thirdly, questions regarding the legislative process of the EU should be answered. Wouldnt it be easier to make an EU-wide abortion rule? Does the EU have the legislative power to harmonize the law of the Member States and
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FDS, Willem-Alexander gaat koning Boudewijn achterna, Nieuwsblad.be 26 February 2010. Walter Mixa, Verglich der Bisschof Holocaust mit Abtreibung?, Focus online 27 February 2009.

thereby create a EU-wide rule about the topic of abortion? Is there a legal base? Have there been changes after the Lisbon Treaty came into force? This sub-questions are structured in several chapters. Chapter I will give an overview of several aspects of abortions e.g. definition, history and methods. To get to a conclusion, the countries mentioned before will be discussed. Chapter II will analyse the legal aspects of abortion in the Netherlands. In view of the comparative law aspects I will then consider Belgium in Chapter III and Germany in Chapter IV. In each of the chapters concerned with the three countries, a structured overview about the history and evolution of the valid abortions rules and the rules in criminal law will be given. Moreover, this essay will involve some evaluations and trends leading to a conclusion. After having discussed each country in detail, there will be a comparison of the mentioned facts of those countries in Chapter V. Chapter VI is dedicated to the European Union e.g. if it is legally justifiable to make an abortion rule. All the answers to the above mentioned questions will lead me to my conclusion Chapter VII.

Chapter I Aspects of abortion: definition, history and methods.

1 What is Abortion Abortion is the termination of the pregnancy of a woman by the removal or expulsion from the uterus of a foetus or embryo, resulting in its death.3 In general, one must make a difference between three stages in which an abortion can be done (figure 1).4 The transition from the embryo-stage to the stage in which one calls the unborn foetus, takes place in the 11th week of the gestational age, which can be compared with the 9th week after fertilization. The gestational age is the age of the unborn, which starts counting from the first day of the last menstruation of the mother and is thus two weeks longer than fertilization. An abortion can emerge spontaneously due to complications during the pregnancy. This situation is better known as a miscarriage. Nevertheless, it also is some sort of abortion since it is a termination of the pregnancy resulting in the death of the embryo or foetus. The big difference between a miscarriage and what is understood as real abortion, is the fact that miscarriages are, mostly unwanted, natural termination while abortions always involve the intervention of another human being it must be induced.
Gestational age: Period after fertilization: Overtime abortions 30 days 4 weeks + 2 days
figure 1

Stage 1: first trimester 13 weeks 11 weeks

Stage 2: second trimester 14-24 weeks 12-22 weeks

2 Short History of Abortion Abortion is not a topic that arose in the recent years. There have always been methods and reasons for women to undergo an abortion.5 Some examples are extramarital relationships or pregnancy at a very young age. It was not easy to prevent pregnancy since there were (nearly) no contraceptives. Since abortion was, at that time, more a taboo than it is now, it was seen as extremely illegal. This resulted in the refuge of women in primitive and dangerous resources to perform an abortion. It needs no clarification to see that this resulted in life-threatening self-made methods, which often lead to permanent infertility or even to death of the woman. In the 60s, the mentality about sexuality had undergone a big change. Next to this sexual revolution, the emancipation began and medical advancements occurred.6 The use of contraceptives began to rise since the birth control pill came on the market with large quantities.7 In the second half of the 60s, politicians began to debate about the topic of abortion.8 Should it be legalised? Should it become part of the legislation? Not only the legal circles discussed the topic, also the medical circles started brainstorming about where and who shall be able to perform abortions and which methods could be used. The countries that will be discussed in this essay have followed the legislative changes of abortion. The Netherlands have legalised abortion in 1981 entered into force in
T. Dutt, Gynaecology for lawyers, London: Cavendish Publishing Limited 1999, p.173. Wijsen 2007, p. 66. 5 BBC, Historical Attitudes to Abortion Abortion in Ancient History, 24 June 2010 (<www.bbc.co.uk>). 6 Esser 2005, p. 7-8. 7 MediaStart, Geschiedenis van de anticonceptie, 24 June 2010 (<www.anticonceptiepil.nl>). 8 Author unknown, Abortus in Nederland, 18 mei 2009, last visited 24 June 2010 (<www.historiek.net>).
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1984 from where it took Belgium nine more years (1990).9 Germany had to deal with the difficulty of separation by the Berlin wall. There have been some exceptions to the general clause, abortion was forbidden, on grounds of health of the woman since 1976. Later, after the fall of the Berlin wall in 1989, in 1992, the same rules concerned the exceptions have been implemented in the old and new Bundeslnder.10,11 3 Methods The methods used nowadays can be split up into two different kinds. The first method is the non-surgical abortion this method is the least radical one. Surgical abortion, which is the second method, can further be divided into vacuum aspiration, dilatation and curette and dilatation and evacuation. All these methods will be explained below. 3.1 Non-surgical Abortion or Medical Abortion The method used depends on the gestational age of the foetus or embryo. In the period until the 13th week of gestational age, it is even possible to do an abortion without a surgery, known as medical or non-surgical abortion. Hereby is meant the use of pharmaceutical drugs to voluntary terminate the pregnancy. Medical abortion is a combination of two drugs namely Mifepristone followed by the use of Misoprostol to induce contractions. At a later stage, it can be necessary to ad Prostaglandin, a blood thinner. Just for information, Mifepristone, is also used in the morning after pill. Mifepristone blocks the hormone progesterone that sustains the pregnancy. This results in the fact that the endometrium loses its function of securing the embryonic developments.12 Prostaglandin secures the just expulsion of the gestational sack and other pregnancy tissues. This means that, by swallowing these two (or three) drugs, the figure 2 abortion is irrevocably initiated. The dose that must be used depends on the gestational age of the foetus. Until the 49th day, 200 mg of Mifepristone the dose of Prostaglandin can differ per person followed by, after 36- 48 hours, 400 g orally used Misoprostol, shall be sufficient.13 From the 50th until the 63rd day, the dose of Misoprostol has to be doubled, meaning 800 g vaginal Misoprostol. The dose shall be followed by 400 g oral Misoprostol every three hours, which can be added up to a maximum of four doses.14 The effect of the medical abortion is nearly the same as the effects of the spontaneous abortion. Those effects are cramping and heavy bleedings, similar to the menstrual bleedings. In exceptional cases, the bleeding can hold on up to 45 days, but the normal case is a nine day bleeding. It can happen that the abortion is not fully completed or even failed. In such cases, a surgical intervention will still be necessary. Medical abortion is most of the time performed in an abortion clinic or in a hospital.

See Wet Afbreking Zwangerschap for the Netherlands (Chapter II, Paragraph 2) and Wet betreffende Zwangerschapsafbreking for Belgium (Chapter III, Paragraph 2). 10 See 218 Strafgesetzbuch (Chapter IV, Paragraph 2). 11 This will be further discussed in Chapter IV. 12 The endometrium is the inner membrane of the uterus. 13 g = micrograms 14 WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003, p. 35-36.
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The use of Mifepristone is accepted, although not always legalised, in about 31 countries all over the world.15 Figure 2 shows the approvals in European Union Member States. Regarding Belgium, Germany and the Netherlands, one shall notice that the use of Mifepristone is legalised in these three countries. Only Italy and Ireland are against Mifepristone. The background reason for this decision is quite logical since both countries are against any kind of abortion. 3.2 Surgical Abortion Surgical abortions can only be done with intervention of a doctor. This means that these interventions can only be performed in an abortion clinic or hospital since there are too many risks with regard to infections. 3.2.1 Vacuum Aspiration16,17 The most used surgical abortion is the vacuum aspiration. This can be done manually, but also electronically. The difference between the manual aspiration and the electronic aspiration lays in the fact that the electronic aspiration is performed by using an electric vacuum pump, while the manual aspiration is performed by using a hand-held and 18 To activated syringe (also called aspirator). ensure the success of an aspiration, the gestational figure 3 age must be between six and twelve weeks. The operation takes about three to ten minutes. First of all, a speculum will be inserted into the vagina. This makes the cervix visible. The vagina and cervix will get cleaned with an antiseptic solution. A local anaesthesia of the cervix is sufficient, although it is possible to choose for a full anaesthesia. The doctor will define the length of the uterine cavity. After this, the cervix is dilated to insert a tube. This tin tube is placed into the uterus, through the cervix. During such an aspiration itself, the foetus or embryo will be removed together with the placenta and other pregnancy tissues. (see also figure 3) 3.2.2 Dilatation and Curette19,20,21 The method of dilatation, mostly combined with a curette, is the least favourable method of abortion and is only used if there are no other possibilities e.g. vacuum aspiration or medical abortion. This method is used for first trimester abortions, until thirteen weeks of gestational age. The cervix has to be stretched in the same way as in case of a vacuum aspiration. This dilatation, mostly with done with mechanical
ProFamilia Deutsche Gesellschaft fr Familienplanung, Schwangerschaftsabbruch mit Mifepriston und Misoprostol, Frankfurt am Main, 2008, p. 6-7. 16 WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003, p. 32-33. 17 Jones 2006, p. 424-426. 18 This syringe is a plastic 60ml aspirator with a diameter between four and 12 millimeter. 19 Turrentine 1994, p. 57-58. 20 WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003, p. 33. 21 Jones 2006, 426-428.
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figure 4

dilators, reduces the risk of an injury to the cervix during the proceeding. For this rarely used type of abortion, a sharp, narrow looped instrument (the curette) is used to remove the tissue from the inside of the uterus. The tissue removed during the operation is examined to make sure that the abortion is successfully completed and there is no tissue left inside the uterus. This procedure takes longer than the vacuum aspiration, normally five until fifteen minutes. Side effects may occur more frequently with this kind of abortion. During the procedure itself, the woman can feel cramping and after the abortion, long and painful bleedings are not uncommon. Moreover, the risk of an infection of the uterus is higher and therefore antibiotics will be given to prevent this infection. This method of abortion is also used if there have been complications or if there still is some tissue remaining after a medical abortion or a vacuum aspiration. (See also figure 4) 3.2.3 Dilatation and Evacuation22,23 The dilatation and evacuation method of abortion is used for second trimester abortions. It is a combination of the before mentioned methods vacuum aspiration and dilatation and curette. Beside the procedures of those other methods, it is necessary to use surgical instruments for this method. The size of the unborn in this stage of pregnancy is already far evaluated. This makes it also necessary to use Misoprostol, several hours before the surgery, to soften the cervix for an easier dilatation during the operation. After this, electric vacuum aspiration is done with an aspirator with a diameter between 14 and 16 mm. One must notice the difference of the diameter of the aspirator used for a normal vacuum aspiration, where it has a diameter of four until twelve millimetres. After this, a forceps or another grasping instrument will be passed into the uterus, to grasp tissue. Having removed the biggest tissue parts of the unborn, a curette is used to clean out the uterus. The removed parts are examined to make sure that there is nothing left inside. The side effects are nearly the same as in a dilatation and curette procedure. Still, there is another difference with the before mentioned abortion methods, namely the duration of the surgery. Where it took five until ten minutes for the other methods, it will take about thirteen minutes for a dilatation and evacuation abortion. (See also figure 4) 4 Conclusion The ancient Greeks performed abortions, it has been done in the Middle Ages and nowadays, a woman can still choose to undergo an abortion. It seems like there have been no changes, but nothing is less true. Abortion has been legalised and the methods have been evolved into safe and more comfortable proceedings. The choice of which method will be used depends on the gestational age of the foetus. One shall notice that medical abortion a less invasive and intensive procedure compared to the surgical methods of abortion. Where medical abortions can sometimes be done at home, surgical abortions must be done in an abortion clinic or hospital since there is always a doctor involved in surgical abortion. The question that could now be raised is whether all EU-countries have implemented the same rules according to these abortion methods?

WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003, p. 33. 23 Jones 2006, p. 431.
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Chapter II The Netherlands

1 Introduction In 2008, the total number of registered abortions has been counted up to 32.983 women.24 This number stayed about the same in the last years.25 The highest abortion number ever measured in the Netherlands dates back to 1980, where the number of abortions was 56.400. These big decrease of the number of abortions shows that the Netherlands has undergone an evolution. However, it took the Netherlands several years to regulate on the topic of abortion. This chapter will give an overview about the way to and information about the abortion rules of nowadays in the Netherlands. To allow for a better picture of the evolution, evaluations and trends are added too. 2 The Abortion Rules in the Netherlands The Dutch rules concerned with abortion are split up into rules in the Penal Code and rules in the Wet Afbreking Zwangerschap. The Penal Code shall be used as starting point abortion is illegal. There are however exceptions to this illegality which are contained in a specific abortion law. The scheme below gives a structured overview about the application of the legal rules concerned with abortion in the Netherlands. First, a history and evolution of the creation of the abortion rules will be given. Hereafter, one will get to know more about the aspects of the Wet Afbreking Zwangerschap and the specific Articles of the Dutch Penal Code.
figure 5

Paragraph 4 Article 296 Penal Code refers to the Wafz

2.1 History Forming an abortion rule seemed difficult in the Netherlands. Before the creation of a separate abortion law, as existing today, the only place where abortion was mentioned was in the Criminal Code of the Netherlands. In the early years, Criminal Code only talked about crimes against life. The problem however was that the Dutch Supreme Court ruled that to prove that there has been such a crime against life, one should be able to prove that the foetus survived or was alive after the abortion. This criterion was difficult, if not impossible to fulfil. How should one prove that the foetus is alive and able to survive outside the mothers womb after an abortion? This issue resulted in the creation of crimes against morality, which have been inserted into the Dutch Criminal Law in 1911. The evidence of the living foetus was no longer necessary since one could
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Kruijer e.a. 2009, p. 7. In 2007 there have been 33.148 abortions in the Netherlands (see: L. van Lee e.a., Rapport Landelijke Abortus Registratie 2007, Utrecht: Rutgers Nisso Group, 2008, p. 1.)

already be convicted for having the intention to undergo a treatment or to help a woman resulting in the termination of the pregnancy.26 After the evolution from crime against life to crime against morality, the evolution of the right of self-determination began to rise. One started arguing that abortion should be seen as a choice, as right of the mother to choose for an abortion resulting in the fact that the Supreme Court stated that abortion should no longer be seen as illegal. Through these developments, a new way of thinking emerged. The social view on topics like self-determination and abortion led to discussions in the 1970s about the creation of a separate legal rule for abortion. The underlying reason for the need of formation of such a rule seemed to be the incompleteness and unsatisfactory nature of the applicable law at that time. Several legislative proposals have been submitted to the States General six initiative proposals and two government proposals.27 The two most important proposals are those of 1970 and 1975. In 1970 the Social Democrats (PvdA) made a legislative proposal in which they opted for the removal of abortion from the Criminal Code. The Christian Democrats (CDA) opposed this view in 1975 they wanted abortion to stay in the Criminal Code. However, they made a proposal for legalising abortion in cases in which the continuation of pregnancy would violate the mental and physical health of the woman and the only possible way to avoid this would be abortion. In 1976 a proposal of the Liberals (VVD) followed. Though, it seemed impossible to reach a majority in favour of the either of the proposals. Finally, on the 17th of December 1980, the proposal of the VVD and CDA was adopted with 76 votes in favour and 74 votes against. After the approval of the First Chamber, the Second Chamber of the States General here also accepted the proposal with 38 votes in favour and 37 votes against. The new separate abortion law Wet Afbreking Zwangerschap (Wafz) entered into force, through the pregnancy determination act of 17th May 1984, on the first of November 1984.28,29 2.2 Illegal Abortion and Rules in Criminal Law The Wet Afbreking Zwangerschap, which will be discussed in detail later on, is not the only source of law regarding the legal or illegal status of abortion. The starting point in the Dutch legislation must be found in the Penal Code of the Netherlands. The most important Articles regulating this situation are Article 82a in conjunction with Article 287, for abortions after the 24th week of gestational age of the foetus, and Article 296, for abortions within the 24 weeks time period, of the Penal Code of the Netherlands.30 Article 296 Penal Code is moreover of importance since it opens the gates to the application of the Wafz. 2.2.1 Article 82a in Conjunction with Article 287 of the Dutch Penal Code Article 82a read in conjunction with Article 287 of the Dutch Penal Code forms the basis of the abortion rule in the Netherlands if one is talking about an abortion after the 24th
Leenen 2007, p. 156-157. The States General of the Netherlands (Staten-Generaal) is the legislative organ and it consists of the first and second chamber according to Article 50 in conjunction with Article 51 of the Dutch Constitution. Furthermore, according to Article 81 of the Dutch constitution, it is the States General acting in coordination with the government while adopting new laws. 28 Wet van 1 mei 1981 (Stb. 1981, 257) houdende regelen met betrekking tot het afbreken van zwangerschap, zoals deze wet laatstelijk is gewijzigd bij de wet van 27 september 2001 (Stb. 2001, 481). 29 The pregnancy determination act (Besluit Afbreking Zwangerschap) is an Order in Council, which sets out and defines the execution of the Wafz. 30 Wet van 3 maart 1881 (Stb. 1881, 35) zoals laatstelijk gewijzigd bij wet van 1 april 2008 (Stb. 2008, 148).
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week of gestational age. To come to Article 82a Penal Code, one shall take a closer look at Article 82 paragraph one, stating that grievous bodily harm is punishable under Article 287 of the same Code. The definition of such harm caused to children or to a foetus is then given in Article 82a of the Dutch Penal Code. It is clear that the killing of a embryo that may reasonably be expected to be in a position to stay alive outside the mother's body falls under the definition of Article 82. The height and kind of the punishment can be found in Article 287, which is titled crimes against life. It contains an imprisonment of maximum 15 years or a fine up to 74.000. The term at which a foetus would be able to survive outside the mothers womb has been set at 24 weeks of gestational age, as mentioned earlier. One shall notice that, nowadays, it is possible to determine the age of the foetus very precise by using ultrasound. Next to this determination of the real age, the High Court of the Netherlands has also states that one shall look at the reasonable possibility of survival of the foetus when it would have been given birth in a normal way, even if this survival rests only several hours.31,32 2.2.2 Article 296 of the Dutch Penal Code Next to the above-mentioned Article 82a, Article 296 of the Dutch Penal Code is of importance too. This Article contains the abortion rules for treatments within the first or second trimester. The Article states in paragraph one that the one giving women a treatment while knowing or presuming that the pregnancy could be aborted, shall be punished with imprisonment of maximum four year and six months or a fine of the fourth category. A fine of the fourth category can be any sum up to 18.500.33 Paragraph two until four of Article 296 Penal Code contain situations in which the sanction would be aggravated.34 At first sight, one would consider this Article, together with Article 82a, as contrary to the fact that abortion is allowed in the Netherlands. This consideration is based on fact wouldnt there be paragraph five, which is referring to the Pregnancy Determination Act of the Netherlands. If the treatment will be carried out by a doctor in a hospital or clinic as defined in the Wafz, pregnancy termination may be performed it will not be punishable. One shall notice that in case of force majeure aimed at saving the life of the pregnant woman can relief a doctor of a punishment while acting in a clinic without the allowance of the Minister of Public Health.35 The specific rules of the Wafz will be discussed below. 2.3 Legal Abortion, the Wet Afbreking Zwangerschap and its Aspects

2.3.1 General Information The Wet Afbreking Zwangerschap (Wafz) contains several rules and criteria under which abortion is legalised.36 The act itself is not that extensive since it only contains 20 Articles. It will be beyond the scope of this essay to discuss all 20 Articles in detail. Nevertheless, attention will be devoted to the most important ones.
HR 29 May 1990, NJ 1991, 217 (For more information see also: T. Schalken, Ordening van Emoties, Deventer: Kluwer, 2005, p. 64-65). 32 Leenen 2007, p. 84. 33 Article 23 of the Dutch Penal Code mentions the categories of the fines. 34 These situations are: not having allowance of the woman, treatment resulting in the dead of that woman and a combination of both. 35 Leenen 2007, p. 83. 36 Wet van 1 mei 1981 (Stb. 1981, 257) houdende regelen met betrekking tot het afbreken van zwangerschap, zoals deze wet laatstelijk is gewijzigd bij de wet van 27 september 2001 (Stb. 2001, 481).
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To start with, the place where an abortion shall be performed is laid down in Article 2 Wafz. This Article states that treatments aimed at terminating a pregnancy must only be performed by a doctor in a hospital or clinic to whom authorisation to perform such a treatment is granted by the Minister of Public Health. Next to the determination of the price, the period for reflection can be found in Article 3 Wafz stating that the treatment meaning abortion cannot be performed before the sixth day after the doctors consultation of the woman in which the advantages, disadvantages and risks of an abortion have been discussed. Another crucial Article Article 5 Wafz contains the obligation that the woman must be in a condition of emergency. Whether or not this is the case, shall be examined by a doctor. Abortion shall not be performed anymore if the foetus would be able to survive outside the mothers womb. All these aspects will hereafter be discussed in detail. 2.3.2 Aspects of the Wet Afbreking Zwangerschap and abortions beyond its scope

Emergency Situation The Wafz mentions the situations in which an abortion is legal. As mentioned earlier, Article 5 Wafz mentions that the women on whom an abortion will be performed, must be in an emergency situation. The Wafz itself does not extensively state or define what is meant with an emergency situation. Parliamentary documents tried to describe such a situation in more detail.
In artikel 5 is met noodsituatie bedoeld de toestand van geestelijke nood waarin de vrouw is komen te verke- ren door haar ongewenste zwangerschap zonder dat er sprake is of behoeft te zijn van dreigend fysiek of psychisch letsel.37

According to the statement of the Second Chamber of the States General, an emergency situation shall be any situation in which the unwanted pregnancy would lead to a threatening psychological or physical injury of the woman. Next to risks for the womans life, health (mental as well as physical), cases in which the pregnancy is the result of rape or incest are also seen as emergency situation.38 In theory, the doctor shall determine the emergency situation. In practice however, it is often the woman that states that she is in an emergency situation. According to case law, the wish of a woman to undergo an abortion is not enough to prove an emergency situation.39 The discussion about the exact definition of an emergency situation, leads to another debatable topic the balance between the right of the woman and the right to life of the unborn child. This topic has lead to developments at European level briefly implying that there is a margin of appreciation, which is further discussed in Chapter VI. Reflection Period The duration of the reflection period depends on the gestational age of the foetus. For women wanting to undergo overtime treatment meaning women being 16 days over time and a gestational age of the foetus of 28 days applies a (more) flexible reflection period.40 As soon as the stage of pregnancy enters the first or second trimester, the reflection period is determined at five days. The period starts after the first conversation between woman and doctor and ends at the day the treatment is planned.
Kamerstukken II 1979/80, 15 475, nr. 6, p.41 (via <www.statengeneraaldigitaal.nl>). Wijsen 2007, p. 82. 39 Hof s Gravenhage, 8 February 1990, NJ 1990/707, paragraph 15. 40 For more information see subtitle Overtime Treatments.
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This is stated in Article 3 paragraph 1 of the Wafz. A doctor terminating the pregnancy before the reflection period of five days has expired is punishable.41,42 Information Duty The period of reflexion contains the task of the doctors, of the hospitals or abortion clinics, to inform the patient about the risks and consequences of an abortion. Next to the general information, the doctor shall also mention the alternatives to abortion e.g. giving the child up for adoption. This reflection period is legally binding, meaning that one must respect it.43 By 2012, a guideline, made by abortion doctors, concerning the support and accompaniment of women during the decision making process, is expected to be ready.44 Overtime treatments Overtime treatments are the abortions done within the first 16 days over time, meaning about 30 days of gestational age of the foetus. There have been discussions about whether or not the overtime treatments shall fall under the Wafz or not. First, one shall notice that the Wafz originally only applied to abortions after 30 days of gestational age of the unborn.45 It was stated that an overtime treatment could not be seen as an abortion since it was not possible to determine the gestational age of the foetus in stages before the first trimester. One shall however notice that the Wafz was established in 1981. Since that time, medical science has undergone a massive evolution. Nowadays, it is possible to determine the precise age of the foetus in every stage of the pregnancy. Therefore, it was stated that the term overtime treatment was revised it shall be seen as just another form of abortion, an early one.46 Due to these evolutions and changes, there has been an evaluation of the Wet Afbreking Zwangerschap in 2006. The outcome of the evaluation had been the recommendation to bring overtime treatments within the Wafz. Bringing the overtime treatment under the Wafz means that the reflection period would also apply to overtime treatments. The reflection period of five days could lead to problems e.g. if a woman comes to a clinic at the 14th day over time. Since the period for overtime abortions is a very strict and short period, it is of importance that the abortion can be done as fast as possible. This does however not mean that the doctor can refrain from his duty to give information. The doctor and the woman must be convinced that the decision made is a well deliberated one.47 One can thus conclude that the Wafz does not apply to overtime treatments regarding the reflection period. Nevertheless, one shall also notice that overtime treatments can only be performed in abortion clinics or hospitals having the allowance of the Minister of Public Health. This means that Articles of the Wafz concerning the requirements of those institutions do still apply.48
Exception: cases where the health of the woman is in serious danger. Engberts 2009, p. 87. 43 Egberts 2009, p. 87. 44 De Rijksoverheid. Voor Nederland, Abortus, 17 June 2010 (<www.rijksoverheid.nl>). 45 Wijsen 2006, p. 1-2. 46 Jaarrapportage Wet afbreking zwangerschap 2002 (2003). Inspectie van de Gezondheidszorg, Den Haag, p. 16. See also: M.L. Vos, Notitie Overtijdbehandeling, Universiteit Maastricht, 26 June 2010 (<www.parlis.nl>). 47 Visser e.a. 2005, p. 143. 48 De Rijksoverheid. Voor Nederland, Abortus, 17 June 2010 (<www.rijksoverheid.nl>).
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 First and second trimester abortions After the before mentioned overtime treatments, the first and second trimester abortions shall be discussed. It is beyond doubt that both abortion treatments fall under the Wafz. All Articles of the Dutch abortion law thus apply. Next to the emergency situation and the reflection period, there is a time limit set to the possibility of undergoing an abortion. This limit is set at 24 weeks gestational age of the foetus one shall then refrain from intervention. In practice, however, it was revealed that doctors exercise a limit of 22 weeks is handled.49 The reason behind the 24-week limit is that at that time, it is assumed that a foetus would be able to life on its own outside the mothers womb.50 Nevertheless, under strict criteria, it can be possible that abortions after the 24th week of gestational age of the foetus called late abortion are legal. However, such an abortion is not mentioned in the Wafz. Late Abortion51 In the Netherlands, abortions after the 24th week of gestational age of the foetus can be legalised. There has been made a distinction between late abortions of category one and category two.52 The category one late abortions covers the case of a not viable foetus. If the foetus age is determined at 24 weeks or more and it is obvious that the foetus will not be able to survive outside the mothers womb, a late abortion will be lawful. Cases in which the foetus is having severe disabilities are likely to lead to irreparable suffering of the unborn fall under category two. Doctors performing late abortions shall respect the rules laid down in the Wafz. Moreover, it must be the explicit wish of the mother to terminate the pregnancy. Next to the Wafz, there is a strict procedure regarding late abortions of category two. Since March 2007, there is a designation of the Public Prosecutor of the Netherlands regarding the prosecution-decisions in cases of not requested euthanasia and late abortion.53 At the same time an Expert Committee for evaluation of reported cases of late abortion or euthanasia of newborns has been launched. Rules regarding this committee are contained in an arrangement.54 The task of the Committee is to judge on abortions of category two by questioning if several diligence requirements are fulfilled. Examples are: Was there a category two situation (meaning severe disabilities etc.)? Would the unborn have had a hopeless life? Was it the explicit wish of the mother? Has the doctor given enough information? 55 The Committee then sends its judgment to the Public Prosecutor the judgment serves as advice that will have the final say in whether or not there will be a prosecution. In most cases, the Public Prosecutor will not make a prosecution if the criteria for a late abortion are fulfilled. The Chief Justice will inform the doctor about the outcome of the investigation the criminal case will be dismissed.56
De Rijksoverheid. Voor Nederland, Abortus, 17 June 2010 (<www.rijksoverheid.nl>). It can happen that a foetus can survive when born in the 23rd week, but this happens rarely. 51 Ministerie van Justitie, Levensbeindiging bij pasgeborenen en late zwangerschapsafbreking, 21 June 2010 (<www.justitie.nl>). 52 Leenen 2007, p. 84-86. 53 College van Procureurs-Generaal, Aanwijzing Vervolgingsbeslissing Levensbeindiging Niet op Verzoek en Late Zwangerschapsafbreking, Staatscourant 6 March 2007, nr. 46. 54 Regeling van de Staatssecretaris van Volksgezondheid, Welzijn en Sport en de Minister van Justitie (nr. 5471313/07), Regeling (houdende de instelling van de) Centrale Deskundigencommissie Late Zwangerschapsafbreking in een Categorie 2-geval en Levensbeindiging bij Pasgeborenen, Staatscourant, 13 March 2007, nr. 51. 55 Leenen 2007, p. 84-86. 56 Ministerie van Justitie, Levensbeindiging bij pasgeborenen en late zwangerschapsafbreking, 21 June 2010 (<www.justitie.nl>).
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 Rechtbank s Gravenhage, 31 January 2008, LJN: BC31821 This case was about a Dutch woman that tried to get an abortion in the Netherlands. Her wish was rejected since the gestational age of the foetus was determined weeks at 26 weeks abortion only possible till 24 weeks. The doctor informed her that neither he nor any other doctor in the Netherlands would be able to do the abortion. The woman then went to Spain (Barcelona) to undergo the abortion there. Back in the Netherlands, she was prosecuted on the ground of (primary) murder of a viable foetus or (subsidiary) infanticide. The delicate question here is whether requirements of Article 5 paragraph 1 sub 2 Dutch Penal Code are fulfilled. Since the unlawful act has taken place outside the Netherlands, the act must be seen as a crime in the Netherlands and the act must be punishable regarding to the law of the country where the act took place (Spain). These requirements are called double jeopardy. After some research of the Public Prosecutor, it was clear that the woman was guilty about committing an unlawful late abortion, however, the prosecution has been suspended due to the psychiatric circumstances of the woman.2 1 To be found on <www.rechtspraak.nl>
2

V. Laverman, Justitie seponeert zaak late abortus Spanje, De Volkskrant 4 December 2008 (<www.volkskrant.nl>).

One shall also mention that Article 20 Wafz contains the possibility of non-cooperation for doctors and other persons involved in the abortion process. If the doctor has objections against the termination of the pregnancy, he/she shall mention this to the woman immediately. 2.4 Abortion Clinics and Costs Since the entering into force of the Wafz, the Netherlands has founded 16 abortion clinics and about 100 hospitals with the allowance for abortion treatments.57,58 The clinics are accessible for Dutch woman as well as for foreign woman (not having a Dutch nationality). One can thus conclude that there is no distinction regarding to the nationality of the woman in case of the accessibility of the clinics. Another topic however is the price of the treatment. One must here make a distinction according to the place where the abortion has been performed.59 If the abortion took place in a hospital, the health insurance will bear the costs. The starting point is the Algemene Wet Bijzondere Ziektekosten (AWBZ). According to Article 5 AWBZ, every citizen of the Netherlands or every worker submitted to the salaries tax is by right insured. Furthermore, according to Article 2 of the Zorgverzekeringswet, everybody, who is by right ensured at the AWBZ, has to register at a health insurance organisation. This is of importance in case the abortion took place in an abortion clinic than the AWBZ bears the costs of the treatment for persons being registered at a health insurance organisation.60 The costs that are beard by the AWBZ are to be found in Regeling subsidies AWBZ abortion is mentioned in Article 2.11.2.
Those clinics are situated in: Alkmaar, Amsterdam (2), Arnhem, the Hague (2), Eindhoven, Enschede, Goes, Groningen, Heemstede, Leiden, Maastricht, Rotterdam, Utrecht, Zwolle. 58 Nederlands Genootschap voor Abortusklinieken, Adressen van Abortusklinieken in Nederland, 17 June 2010 (<http://www.ngva.net/klinieken.html>). 59 Visser e.a. 2005, p. 59. 60 De Rijksoverheid. Voor Nederland, Abortus, 17 June 2010 (<www.rijksoverheid.nl>). See also: Visser e.a. 2005, p. 28- 42.
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This means that, as long as the woman that wants to undergo an abortion is registered according to the AWBZ and thus has a health insurance in the Netherlands, there will be no extra costs for an abortion.61 The costs of an abortion for women that are not ensured in the Netherlands are determined by the Nederlandse Zorg Autoriteit (NZa).62 2.5 Evaluations and trends After having mentioned the legal aspects of abortion in the Netherlands, it could be interesting to take a closer look at statistics concerned with the evolution of abortion. The Rutger Nisso Group yearly publishes a report of the registered abortions. There are 14 of the 16 abortion clinics delivering the group with data. The most interesting facts, based on the report of 2008, will be discussed below.63 2.5.1 Numbers of Abortion64 According to the number of abortions, one can note that in the period between 2002 and 2008 the height of the abortion rate almost remained unchanged. In 2008, 32.983 abortions have been performed whereof 94% have been done in abortion clinics.65 Most of the women undergoing an abortion in the Netherlands are also living in the country. Only 13,4% percent are foreign women. Within the Netherlands, most of the abortion clients come from the Provinces North and South Holland. The total numbers of abortion is relatively low compared to the rest of the western countries.66 2.5.2 Gestational Age67 It is recently noticed that more abortions are done within the first four weeks of gestational age of the foetus. In 2007, 34,8% of the abortions was performed in that period whereas in 2008, the percentage climbed up to 37,4%. This is a positive evolution since the abortion within the first four weeks is less invasive. The operation is easier and faster and since the women had less time to form a bond with the unborn foetus which makes the interference easier for the women to process. A logic consequence of the increase of overtime abortions is the decrease of abortions in the first and second trimester. The percentage of abortions during the first trimester is 56 % and during the second trimester 6,6%. 2.5.3 Country of Origin68 For this essay, it is interesting to have a closer look at where the women undergoing an abortion in the Netherlands come from. As one can see on figure 6, France, Germany, Belgium and Luxembourg are countries of which the rate of women travel to the Netherlands to undergo an abortion is the highest. With others are meant countries like Austria, Ireland, Poland, Switzerland and Italia. Ireland represents 4% of the total amount of women in the category others. This is the highest percentage in that category. The reason behind can be found in the abortion laws of Ireland stating that it is not allowed to undergo an abortion. The only
One must keep in mind that there are costs for having such a health insurance. Those costs mostly depend on the income of the insured person. 62 Staatscourant nr. 1735, 8 February 2010, Tarieflijst Instellingen 2010, 28 januari 2010, Nr. LHUS/mvem/CI/10/12c 10D0002782. With attachement: Bijlage 1 bij beleidsregel CI-1136 Gecorrigeerde versie februari 2010. 63 See Kruijer e.a. 2009. 64 Kruijer e.a. 2009, p. 7-9. 65 This number is without late abortions. 66 Wijsen 2007, p. 13. 67 Kruijer e.a. 2009, p. 15-16. 68 Kruijer e.a. 2009, p. 33-35.
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possibility for Irish women is to go to Great Britain or to the next nearest country, the Netherlands.
figure 6

The division as seen on figure 6 stayed almost the same compared to the past years. 2.6 Women on Waves: The Abortion Ship69 Next to the abortion clinics and hospitals, there is a non-profit organisation in the Netherlands called Women on Waves. The concept has been created by Rebecca Gomperts. She and her team designed a portable gynaecology unit that can be installed on a ship. The ` crew is sailing to countries in which abortion is not allowed. In such figure 7 countries, there are several illegal and unsafe abortions performed that can result in the death of the woman. Every 8 minutes a woman dies needlessly as a result of an unsafe illegal abortion.70 If there are women wanting to undergo an figu`r abortion, they can make an appointment with Women on Waves. The ship then sails into the international waters, where Dutch law is applicable since the ship sails under the Dutch flag. One shall notice that only medical abortions will be performed on the ship. Surgical abortions are only allowed in abortion clinics and hospitals with allowance of the Minister of Public Health.

Since 2009, the Wafz Articles regarding the place where an abortion can be done abortion clinics and hospitals with the allowance of the Minister of Public Health also apply to overtime abortions. This resulted in a long and difficult communication with the Authorities.71 It was not clear whether the abortion ship needed a license to perform overtime abortions. Nevertheless, there are several press releases stating that Women on Waves have the licence to perform abortions up until 12 weeks of gestational age of the foetus.72 This statement has also been clarified during a phone call. It has been said that Women on Waves indeed has a license up until 12 weeks,

Women on Waves Foundation, Woman on Waves, 22 June 2010 (<www.womanonwaves.org>). Women on Waves Foundation, Feiten over Abortus Wereldwijd, 22 June 2010 (<www.womanonwaves.org>). 71 Ministerie van Volksgezondheid, Welzijn en Sport, Kamervragen Sap over Women on Waves, Kamerstuk (PG-K-U- 2948410), 7 September 2009. 72 R. du Pr, Woman on Waves vreest vervolging, De Volkskrant, 26 July 2010 (<www.volkskrant.nl>).
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however they mostly perform medical overtime abortions, since everything else would be too risky.73 Up until now, the ship already sailed to Ireland (2001), Poland (2003) and Spain (2008). The ship also wanted to sail to Portugal. Women on Waves waited during the period from the 28th of August 28 until the 9th of September 2004 to enter Portuguese waters. Unfortunately, the ship was being blocked to enter by two Portuguese war ships.74 3 Conclusion Most of the abortion rules of the Netherlands are contained in the Wet Afbreking Zwangerschap, which evaluated due to developments in medicine. This law regulates some parts of the overtime abortions and also the first and second trimester abortions. Next to the Wafz, the Penal Code of the Netherlands also regulates on the topic of abortion. Here, Articles 296, 82a and 287 are of importance. Next to the general abortion in the overtime period, fist and second trimester, the Netherlands has moreover regulated on late abortions. These are abortions after the 24th week of gestational age of the foetus judged by a Committee on legality. Compared to the rest of the western countries, the abortion rate of the Netherlands is relatively low. One can moreover state that France, Belgium, Luxembourg and Germany are the countries of which a lot of women come to the Netherlands to undergo an abortion.

Interview with employee Women on Waves by phone call to number +31(0)20 465 0004, Woman on Waves, Amsterdam, 22 June 2010. 74 Women on Waves Foundation, Woman on Waves, 22 June 2010 (<www.womanonwaves.org>).
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Chapter III Belgium

1 Introduction On the 28th of April 2010, about 1.700 people walked through the streets of Brussels, capital of Belgium, to protest against abortion.75 The slogans those people were holding were titled Mars voor het leven (march for life). The underlying reason for this protest action was the twentieth anniversary of the Belgian abortion law, which legalised abortion and which has been published on the fifth of April 1990 Wet Betreffende de Zwangerschapsafbreking. The rules of the Belgian abortion law will be discussed in this chapter. 2 The Abortion Rules in Belgium The abortion rules in Belgium are to be found in the Penal Code as well as in the Wet Betreffende de Zwangerschapsafbreking. Article 350 first sentence of the Belgian Penal Code, stating that abortion is illegal if it is performed contrary to the criteria contained further in Article 350, shall be used as starting point. Article 350 sums up the criteria that must be fulfilled before an abortion in Belgium can be legalised. This Article has not always been like it is nowadays. By the entry into force of the Wet Betreffende de Zwangerschapsafbreking the rules in the Belgian Penal Code concerning abortion have undergone massive changes. For a structured overview, see figure 8.

figure 8 2.1 History Abortion has been a highly discussed topic in Belgium. Womens organisations, the figure 8 church and politicians had different opinions about whether or not abortion should be legalised. A critical year in the abortion history of Belgium is 1973. In that year, a teacher has been dismissed since she had undergone an abortion because her unborn child was seriously handicapped.76 The before mentioned case is an interesting example of the way of thinking of (most of) the Belgian people at that time. Unfortunately, this was not the only incident in that year. Next to the before mentioned rather unknown case, the Dr. Willy Peers case brought fact to light that have not been

75 76

A. Burckhardt, Mars voor het leven 2010 te Brussel, 24 June 2010 (<www.28march2010.be>). RoSa Documentatiecentrum, Abortusstrijd, 24 June 2010 (<www.rosadoc.be>).

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well received by everybody. He and other doctors openly stood up for the fact that they have had performed and still will perform abortions. This was contrary to the guidelines of the Orde van Geneesheren, which is an association for doctors. Dr. Willy Peers statement resulted in an official accusation and his custody in 1978.77 Supporters and opponents sharpened their arguments the country, especially the legislative organs, came under pressure and the question of legalisation of abortion had to be answered. Several proposals had been made e.g. those of Willy Calewaert (1971) and Leona Detige (1978). It was however a difficult way before either of those proposals would become law. The last proposal of Detige, Roger Lalleman and Lucienne Herman-Michielsens seemed to get through. Both chambers of the Federal Parliament of Belgium have accepted the proposal with 126 votes against 69 votes in favour and 12 abstentions.78,79 Furthermore, next to the approval of both chambers, the King of Belgium, at that time King Boudewijn I, had to sign the legislative proposal before it could become law. This rather simple and mostly purely symbolic procedure became a quit difficult one, since King Boudewijn I refused to sign the document.80 This refusal goes down in history as the abortion crisis.81 On the 30th of March 1990, the King relies on his conscience and asked the Prime Minister Wilfried Martens to come up with a solution for this crisis in which he succeeded on the first of April of the same year. That day, the Prime Minister declared that the King resides in a factual incapability to rule meaning that the cabinet could exercise the powers of the King in the name of the people. Two days later, the Wet Betreffende de Zwangerschapsafbreking (WBZ) was adopted and on the fourth of April 1990, the Prime Minister declared the King capable of ruling again. The publication in the Official Gazette followed on the fifth of April 1990.82 Since that moment in time, abortion in Belgium was officially legalised until the 14th week of gestational age of the foetus. The Wet Betreffende de Zwangerschapsafbreking would be applied next to the rules contained in the Belgian Penal Code. Next to the WBZ, an evaluation commission has been established on the 13th of August 1990. The task of this committee is to bring out a report (at least) every two years.83 Next to the historical information, one shall mention that the Belgian rules concerned with abortion make a difference between two terms: vruchtafdrijving and zwangerschapsafbreking. The word vruchtafdrijving assumes the artificial and deliberate destruction of the unborn, or in other words, the killing of the foetus. Vrucht refers to the foetus or embryo, regardless the age of the foetus or embryo. The killing of the foetus shall happen within the mothers womb, otherwise, it will be seen as infanticide.84 Zwangerschapsafbreking is referring to legal abortions as mentioned in the WBZ. The big difference between both terms: vruchtafdrijving is a crime, zwangerschapsafbreking is not.
Dr. Willy PEERS Centrum, Geschiedenis van het Dr. Willy Peers Centrum, 24 June 2010 (<www.drwpc.be>). The Federal Parliament of Belgium together with the King forms the legislative organ and is split up into two chambers (see also Article 74 Belgian Basic Law). 79 RoSa vzw, Abortusstrijd, 24 June 2010 (<www.rosadoc.be>). 80 The background reason for his refusal to legalise abortion can be found in the fact that Boudewijn I himself was not able to get children. People are speculating that he could not understand that women would voluntarily remove their unborn child while he couldnt have any child. 81 Author unknown, Belgium: Commoner for a Day of Two, Time Magazine, 16 april 1990 (<www.time.com>). See also: Oud Nieuws, Koning Boudewijn Weigert Abortuswet te Ondertekenen, 24 June 2010 (<www.oudnieuws.web-log.nl>). 82 Wet van 3 april 1990 betreffende de zwangerschapsafbreking, tot wijziging van de artikelen 348, 350, 351 en 352 van het Strafwetboek en tot opheffing van artikel 353 van hetzelfde Wetboek (Staatsblad 5 april 1980), 83 De Wet van 13 augustus 1990 houdende oprichting van de Nationale Evaluatiecommissie inzake de toepassing van de wetgeving betreffende de zwangerschapsafbreking (3 april 1990). 84 Sroka,2009, p. 1-2 (See also: Cass. 3 december 1941, Arr.Cass. 1941, 247; Pas. 1941, I, 441, noot.).
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2.2 Illegal Abortion and the Rules in Criminal Law The Belgian Penal Code starts with the assumption that abortion is not legal in Belgium it is referring to the above mentioned vruchtafdrijving. Crimes and offenses against the order of family and against public morality is the name of title seven of the Belgian Penal Code. Chapter one of that title gives specific rules about abortion.85 The Articles contained therein are those that have been changed and adjusted by the WBZ. 2.2.1 Article 350 of the Belgian Penal Code Article 350 of the Belgian Penal Code starts with the statement of illegality of abortion. Later on in the same Article, the criteria under which an abortion in Belgium can be legal are mentioned. The first two paragraphs are talking about the 12 weeks time limit next to several obligations of information of the doctor performing the abortion. Paragraph three contains the reflection period of five days. The 12 weeks limit can be legalised under the criteria mentioned in Article 350 paragraph four. The last but one paragraph contains the duty to inform the women about the use contraceptives. Next to all these duties, paragraph six contains the right that nor a doctor, nor a nurse, nor any other person in the abortion process can be forced to assist in the performance of abortion. The most important criteria will be further discussed in detail in paragraph 2.3.2. 2.2.2 Article 351 of the Belgian Penal Code Next to Article 350 Belgian Penal Code, one must notice Article 351. This Article concerns abortions that fall outside the scope of Article 350. Cases not fulfilling the criteria of Article 350 are illegal and thus punishable. A woman who lets perform an abortion under other circumstances can be punished with imprisonment between one month and two years and a money fine between 50 and 300 Euro. Article 532 contains cases in which there will be an aggravation of the sanction. 2.3 Legal abortion, the Wet Betreffende de Zwangerschapsafbreking

2.3.1 General Information The Wet Betreffende de Zwangerschapsafbreking (WBZ) is a short piece of law, which adjusted several Articles of the Belgian Penal Code. Article 2 of the WBZ of 1990 is the most important Article of the Belgian abortion rule, since it adjusts Article 350 of the Belgian Penal Code. This Article will be fully discussed hereafter. 2.3.2 Aspects of the Wet Betreffende de Zwangerschapsafbreking Contained in Article 350 Belgian Penal Code

Emergency Situation Article 350 Belgian Penal Code, second sentence, mentions that the women wanting to undergo a legal abortion shall be in an emergency situation. The law itself does not give any specific definition nor does it contain a list of circumstances falling under an emergency situation. However, the Evaluation Commission of the WBZ, has created seven reasons under which an emergency situation has to be adopted. Those seven categories are: health
85

Wet van 8 Juni 1867 Strafwetboek (B. S., 9 juni 1867).

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issues, a personal emergency situation, a material emergency situation, relational problems, rape or incest, being a political refugee and a category others.86 Personal emergency situations can contain lots of reasons for performing an abortion. The top three used reasons are: not having a child-wish at that moment, the women feel too young and the family is already completed.87 Moreover, from parliamentary documents, it becomes clear that an emergency situation is a consequence of what one has experienced and this is then reflected in the refusal to carry out the pregnancy.
De noodsituatie is een gevolg van wat men heeft meegemaakt en uit zich in de weigering om de zwangerschap uit te dragen.88

A list of emergency situations is contained in the report of the Evaluation Commision. There are 24 emergency situations which can be split up is 7 categories: physical or mental health of the mother or the unborn, personal reason, financial or physical reasons, relational or family problems, pregnancy following rape or incest, being a political refugee and other reasons. Next to the expression of the emergency situation in which the woman feels to be in, the treating physician plays an important role. It will be up to the doctors to determine whether the situation in which a woman finds herself should be seen as one of the emergency situations mentioned above. There thus will be made a decision by the doctor in consultation with the pregnant woman. One could wonder whether this way of handling leads more to the expression of the opinion of the doctor rather than to the expression of the emergency situation of the woman.89 Furthermore, since the doctor has the choice, this entails the impossibility to question the acceptation of the emergency situation of the doctor and the emergency situation itself, after the abortion, as it happens, post factum.90 Next to this statement of an emergency situation, the woman must, in writing, confirm her wish and decisiveness to undergo the abortion at the day of the treatment.91 Reflection Period To ensure the emergency situation of the woman undergoing an abortion, the legislator has inserted a reflection period clause. According to Article 350 paragraph three of the Belgian Penal Code, an abortion shall only be legal if the doctor does not perform the abortion before the sixth day after the first consultation and after the written declaration of the woman in which she ensures the will to undergo the treatment. This period of six days shall be respected since Article 350 is binding law. However, there has been a case in 2006 in Bruges, which is giving another impression.
Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat), p. 14. 87 Jongeren Info Life vzw, Abortus in Belgie 2006-2007 Analyse van de Cijfers & Aanbevelingen, Beveren: Peter de Langhe, 2009 (<www.jongereninfolife.be>), p. 9. 88 Belgische Senaat, Voorstellen van de wet betreffende de zwangerschapsafbreking, Zitting 1988-1989, B.Z. 1988, nr. 247/2, p. 89. (See also: Sroka 2009, p. 2-3.) 89 Article 350 paragraph 2 Belgian Penal Code. 90 Jongeren Info Life vzw, Abortus in Belgie 2006-2007 Analyse van de Cijfers & Aanbevelingen, Beveren: Peter de Langhe, 2009 (<www.jongereninfolife.be>), p. 10. 91 This is stated in Article 350 paragraph 2(3) Belgian Penal Code.
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 76. Rechtbank Brugge, 7 Februari 20061 A 14-year-old girl from Belgium became pregnant beyond her wish. Through a social worker, she comes into contact with an abortion center. However there is a six day reflection period, the abortion was performed on the same day the girl contacted the center. This day, was at the same time the last day in which an abortion could be legally performed in Belgium. This would generally be contrary to Article 350 paragraph three. The Court nevertheless stated that one should compare the value of the good that one wished to save, namely the integrity and physical health of the girl, with the breach of the reflection period. Furthermore, the court stated that Article 350 Belgian Penal Code does not exclude a possibility for a justification of the emergency situation.2 The Court therefore concluded that the breach of the law was justified and acquitted all parties. 1 Vansweevelt 2007, p. 306-314.
BELGA, Vrijspraak voor abortus zonder zes dagen bedenktijd, Het Nieuwsblad 7 Februari 2006 (<www.nieuwsblad.be>).
2

One could conclude from the above stated evolutions in case law, the reflection period seems to become more flexible. However one shall also notice that this is just one case ruled out by a specific court. The above-mentioned case contains a very specific situation, which could also mean that the court would, in a slightly other case, act otherwise. Information Duty Next to the emergency situation in which the women must be and the six days of reflection, the doctor has the duty to provide information to women, wanting to undergo an abortion. The information that shall be provided is mentioned in Article 350 paragraph 1(b) and 2(a) of the Belgian Penal Code. First of all, the doctor shall discuss other possibilities to take care of the child like e.g. adoption. Moreover, the physician shall clarify the present and future risks of the abortion. Next to the information that shall be provided by the doctors performing the treatment, the abortion can only be performed in an inrichting voor gezondheidszorg meaning an abortion clinic or hospital with allowance to perform abortions which must be connected to an information service centre.92 This service centre shall provide the patient with additional information e.g. her rights and the assistance she will get. They will emphasize again the possibility of adoption and will help the woman to contact a psychiatrist in case she needs one to solve her psychological or social problems following from the abortion. First and second trimester First trimester abortions are those undergone before the 14th week of gestational age of the foetus, which is the same as before the 12th week after fertilization. Belgian abortion law limits the legal abortion in normal situations to the first trimester. Article 350 paragraph 1(a) Penal Code mentions this limitation. This means that abortion clinics and hospitals can perform abortions during the first trimester. One shall notice that an
92

Sensoa 2009, p. 1.

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abortion can, next to the treatment before the 14th week of gestational age, only be performed if all above mentioned criteria are fulfilled. There are cases in which an abortion can, legally, be performed after the 12th week after fertilization. Article 350 paragraph 2(4) Penal Code states:
[] indien het voltooien van de zwangerschap een ernstig gevaar inhoudt voor de gezondheid van de vrouw of indien. vaststaat dat het kind dat geboren zal worden, zal lijden aan een uiterst zware kwaal die als ongeneeslijk wordt erkend op het ogenblik van de diagnose. In dat geval moet de geneesheer tot wie de vrouw zich heeft gewend, de medewerking vragen van een tweede geneesheer wiens advies bij het dossier moet worden gevoegd.

This means that the exceptions could be the health of the woman, which would be in serious danger if she would not terminate the pregnancy, and the health of the unborn. The health of the foetus shall be of such nature that it suffers from a grave disease, which is recognised as incurable at the moment of the diagnosis. A list of the diseases, which will be seen as serious enough, is contained in parliamentary documents.93 Furthermore, abortions after the 12-week term cannot be performed in an abortion centre anymore but can only be undergone in a hospital with allowance to terminate pregnancy in later stages. Where one doctor and the wish of the woman in the first trimester abortions are sufficient, a second opinion of a professor shall be obtained for any second trimester abortion. The advice following from the appointment must then be added to the file.94 In most cases, an ethic committee will be involved too.95 One shall notice that the opinions of those ethic committees differ from institution to institution. Each hospital has its own criteria in deciding whether or not a disease is serious enough.96 One shall notice that the wish of a woman to undergo an abortion is not sufficient under Belgian law in the second trimester. Moreover, in practice, Belgian hospitals are reluctant in pregnancy terminations after the 12-week time limit. Especially the catholic hospitals often refer women to other institutions, since they refuse treatment in those cases.97 This results in women who often feel desperate and not understood. This is the underlying reason why, in such cases, the women will have to travel abroad. In e.g. the Netherlands, the time limit under which a wish could be seen as sufficient is set at 24 weeks.98,99 Next to the uncertainty about the cases in which a woman can undergo an abortion after the 12th week of gestational age, it is unclear until when a woman can undergo an abortion after that time limit. This question will be discussed and clarified below. Late abortion Abortions after the second trimester abortions are called late abortions. In Belgian law, there is uncertainty about this topic. The abortion law mentions that abortions after the 14th week of gestational age shall only be permitted under specific and strict criteria. The legislature however did not determine or clarified in how for that limit can be
Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat), BIJLAGE 2: p. 39-42. 94 Article 350 paragraph 2(4) Penal Code. 95 Interview with employee Willy-Peers centrum by phone call to number +32(0)3262525, Willy-Peers centrum, Antwerpen, 6 July 2010. 96 P. Vanhamel, Sjerp-Dilemma-VUB, e-mail reaction on question posted on <www.abortus.be>, 7 July 2010. 97 Interview with employee Bourgognecentrum Hasselt by phone call to number +32(0)11232991, Bourgognecentrum, Hasselt, 6 July 2010. 98 For the specific criteria see Chapter II The Netherlands. 99 LUNA, De Wet, 5 July 2010 (<www.abortus.be>).
93

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exceeded. It seems that, abortion after the second trimester can only be done until the foetus is viable until the 24th week of gestational age of the foetus. After that term, one will come to the topic of infanticide.100 Infanticide is punishable under Article 396 of the Belgian Penal Code.101 However, according to a doctor of the University Hospital Leuven, there are some highly exceptional cases in which an abortion can be performed after the 24th week. Those are cases of serious and dangerous diseases of the unborn foetus. The procedure, which will than be followed, is nearly the same as the procedure for second trimester abortions. There will be an involvement of a medical committee consisting of several doctors jointly deciding whether the reasons for the termination of the pregnancy are grave enough. The foetus will then be injected with a toxic substance, which will lead to the death of the foetus inside the mothers womb. Under no circumstances will the foetus be born alive and injected afterwards.102 Abortustermijn van 12 weken is misschien wat kort1 It seems that the time limit of abortion is a recently discussed topic in Belgium. A newspaper article dated 26 March 2010 is stating that the Minister of Public Health Laurette Onkelinx announced that the time limit of 12 weeks could be too short. She based this assertion on the several grounds. She was stating that women, not living in big cities, would not have enough time to get the information needed and that those women moreover realise that they are pregnant at a later stage.
Belga/dea, Abortustermijn van 12 weken is misschien wat kort, De Morgen, 12 March 2010 (<www.demorgen.be>)
1

As mentioned earlier, pagraph six of Article 350 Belgian Penal Code contains the right that nor a doctor, nor a nurse, nor any other person in the abortion process can be forced to assist in the performance of abortion. 2.4 Abortion Clinics and Costs Abortion in Belgium can only be performed in abortion clinics or hospitals with an allowance.103 Referring to data of 2007, one could see that 83% of the abortions have been undergone in special clinics and only 17% in hospitals. This follows from the fact that abortion clinics perform abortions in the first trimester until 12 weeks of gestational age of the foetus and hospitals play a role after that term. Since more abortions are performed in early stages of the pregnancy, it is logical that the percentage of abortions undergone in clinics is higher than that in hospitals.104 An abortion in Belgium costs between 250 and 600 Euro depending on the treatment which is needed to terminate the pregnancy and depending on the clinic or hospital. A medical abortion will logically be cheaper than an abortion via curettage and evacuation. However, the health insurance system in Belgium bears most of the costs for insured women. Since 2002, the Rijksinstituut voor Ziekte en Invaliditeits Verzekering (RIZIV) bears most of the costs of abortion treatments.105 Each abortion
De Nauw 2005, p. 172. Sroka 2009, p. 3. 102 Information given by Prof. Dr. M. Hanssens, gynecology at UZ Leuven , by phone call to number +32(0)16344215 no rights can be derived from this information. 103 Article 350 paragraph 1(b) Belgian Penal Code. 104 Sensoa 2009, p. 11. 105 Wet betreffende de verplichte verzekering voor geneeskundige verzorging en uitkeringen gecordineerd op 14 juli 1994, nr. 1994-07-14/38.
100 101

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clinic had to set up an agreement with the RIZIV which is called revalidatieovereenkomst betreffende medisch-psycho-sociale begeleiding bij ongewenste zwangerschap.106 This agreement contains the clause that the health insurance to which the woman is registered will bear the costs of the abortion.107 The woman only has to pay a very low amount of money about three Euro for the first consultation and the treatment. This patient fee has been set at such a low sum to give women or young girls without an own income the chance to pay for the abortion. The agreement with the RIZIV has established been for abortion clinics only, abortions in hospitals are falling under the normal health insurance system of Belgium. The costs will differ regarding the treatments. Women without any health insurance in Belgium, in principle, have to pay the costs of the treatment themselves. One shall think about women staying illegally in Belgium, asylum seekers or women without any financial resources. However, the abortion clinics try to finance the costs for those women with contributions from other institutions e.g. the Red Cross, CPAS etc.108,109 This results in the fact that even for uninsured women, an abortion in Belgium will be payable.110 2.5 Evaluations and trends The best document to use to give an overview about the evaluations and trends according to abortion in Belgium is the report of the Evaluation Committee. The most recent version has been published in August 2008. Every two years, a new report will be made; unfortunately the report of 2010 has not yet been published.111 2.5.1 Numbers of Abortion112 The numbers of abortions in Belgium are increasing. In 2000, Belgium registered 14.923 abortions and about seven years later, the quantity of abortions has been set at 18.705. Experts consider that the increasing abortions cannot totally be related to a real rise of numbers of abortions undergone in Belgium. They are stating that other evolutions play a more important role. The registration of abortions in hospitals and abortion clinics has been improved, which is leading to a decrease of the dark number the unregistered abortions in Belgium. Moreover, another evolution is the fact that women are thinking more open about abortions. The clinics and hospitals performing such treatments are more easily accessible. This can furthermore be related to the payment rules regulating the abortion payments concluded with the RIZIV since 2002. Undergoing an abortion has become cheaper. Nevertheless, one shall notice that, compared to the rest of the European countries, Belgium has a relatively low abortion rate.
Rijksinstituut voor ziekte- en invaliditeitsverzekeringen: Dienst voor geneeskundige verzorging, Revalidatieovereenkomst betreffende medisch-psycho-sociale begeleiding bij ongewenste zwangerschap, IVG-VZO-25, W. U. 1.07. 107 RIZIV, Verdeling van de globale begrotingsdoelstelling 2009 in partile begrotingsdoelstellingen, 6 July 2010, paragraph 39 (<www.riziv.fgov.be>). 108 CPAS stands for the Public Centre of Social Security. 109 Sensoa 2009, p. 11. 110 Zwangerschappen.be, Abortus Kosten, 6 July 2010 (<www.zwangerschappen.be>). 111 Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat). 112 Sensoa 2009, p. 2.
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2.5.2 Gestational Age Abortions in Belgium can, under normal circumstances, only be performed during the first trimester. There is no clear information about the specific gestational age of the foetus under which most of the abortions are performed. Relating from the fact that the treatments in hospitals only represent a very small percentage of the total abortion rate, one could conclude that abortions after the 12-week term are rather exceptional.113 Looking at the treatments used in abortion clinics, vacuum aspiration is used in 83% of the cases; one can come to the same conclusion since that method can only be used for first trimester treatments.114 2.5.3 Flanders, Walloon and Foreign Countries of Origin115 Since 1962, Belgium is divided in four parts: a German, Flemish and Walloon part and the Brussels Capital Region. The German part of Belgium will not be discussed separately since it is too small. The German speaking parts of Belgium will be added to the provinces, being Flemish or Walloon, they are situated in. figure 9 While discussing the origin of the women, one can see a distinction between abortions undergone in Wallonia and those in Flanders. Brussels Capital Region has, respected its size and inhabitants, the most abortion cases in Belgium. One can notice that the number of women coming from foreign countries and wanting to undergo an abortion in Belgium is very small only two percent. This could be related to the fact that Belgium abortion laws are strict and abortion is only, under normal circumstances, possible until the 12th week of gestational age of the foetus. In other neighbouring countries, e.g. the Netherlands, abortion is possible until the 24th week of gestational age making it more interesting for foreign women to go to the Netherlands than to Belgium. (see also figure 9) 3 Conclusion The Catholic Religious background of Belgium first seemed to be a threshold for the creation of an abortion rule. Nevertheless, nowadays the rules concerning abortion in Belgium can be found in the Belgian Penal Code. The Articles related to abortion in that code have undergone massive changes after 1990 when the Wet Betreffende de Zwangerschapsafbreking entered into force.

Only 17% of the total abortions are performed in hospitals (See also: Sensoa 2009, p. 11.). Sensoa 2009, p. 10. 115 Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat), p. 5.
113 114

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Belgium has only legalised abortions during the first trimester. Abortion clinics and hospitals with the allowance to perform abortions are the only possible place for such a treatment. Second trimester abortions can only be performed if several criteria are fulfilled and can only be performed in hospitals. One shall notice that, abortions between the second trimester and the 24th week of gestational age the age at which a foetus becomes viable are rather exceptional. Abortions after the 24th week of gestational age are more than rather exceptional. Such abortions are almost impossible, since the ethic committee must give its allowance and the criteria under which such a treatment would be possible differ from hospital to hospital. With the above-mentioned in mind, one shall see this as reason for the fact that lots of Belgian women are travelling to neighbouring countries e.g. the Netherlands to undergo an abortion.

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Chapter IV Germany
1 Introduction On the first of January 2010, a new version of the Schwangerschaftskonfliktgesetz the Pregnancy Conflict Act entered into force.116,117 The most important change was the introduction of the disputed mandatory advice procedure during a consultation.118 This procedure includes the information duty of doctors according to the foetal development. The indication on which the abortion will be based will be discussed and the wish of the mother to terminate the pregnancy shall be proved. Moreover, a reflection period of three days starting the day of the before mentioned consultation and the abortion.119This change is the most recent development of the German abortion law, discussed below. 2 The Abortion Rules in Germany The German abortion rules are split up in different documents. To start with, one should take a closer look at 218 ff of the German Penal Code. Next to that legislative document, more specific rules regulating e.g. the consultation procedures and other issues concerned abortion are to be found in the Schwangerschaftskonfliktgesetz and in the Schwangeren- and Familienhilfenderungsgesetz. All the rules of German law
figure 10

regulating abortion will be discussed below.

2.1 History The Penal Code of 1871 was the starting point of a long legislative process. Paragraph 218 of that year was stating that each pregnant woman undergoing an abortion would be punished with five years Zuchthaus a prison with aggravating conditions of detention or, in less worse conditions, with a normal imprisonment of at least six
Bundesministerium fr Familien, Senioren, Frauen und Jugend, Schwangerschaftsconflictgesetz, 14 March 2010 (<www.bmfsfj.de>). 117 Schwangerschaftskonfliktgesetz vom 27. Juli 1992 (BGBl. I S. 1398), das zuletzt durch das Gesetz vom 26. August 2009 (BGBl. I S. 2990) gendert worden ist. 118 T. Schwenzer, Schwangerschaftsabbrucht Probleme im klinischen Alltag, Der Gynkologe January 2010 Volume 43 Number 1, p. 37. 119 Deutscher Bundestag, Was sich am 1. Januar 2010 gesetzlich ndert, 10 July 2010 (<www.bundestag.de>).
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months.120 By the entering into force of 218 a highly discussed political issue arose. In 1927, the German Supreme Court recognises abortion in cases of medical indication meaning that the life of the mother is, due to the pregnancy, in serious danger being an emergency justifying the abortion. This emergency situation is now mentioned in 34 of the valid German Penal Code.121,122 The separation of Germany in 1949 increased the difficulty of the creation of an overall abortion rule. Eastern-Germany, also called the Deutsche Democratische Republiek (DDR), adopted, in 1950, the Gesetz ber den Mutter- und Kinderschutz und die Rechte der Frau.123This legislative document was stating in 11 that an abortion could be justified in situations dangerous for the health of the woman and, moreover, in situations in which one parent suffers from a hereditary disease also called eugenic situations. Moreover, in 1972, the DDR created the Gesetzes ber die Unterbrechung der Schwangerschaft according to which abortion within the first three months has been legalised.124 The next step has been taken four years later, in 1976. In that year, the Bundesrepubliek (BRD) adopted a new edition of the German Penal Code under which abortion would not be punishable in certain cases; before that time, the rules of the BRD were stating that abortion was illegal and unjustifiable. This system is also called indication system and it is referring to health reasons, hereditary diseases, criminological backgrounds and emergency situations.125 After the fall of the Berlin wall in 1989, there were different abortion rules in Germany. The DDR still used the time limit rule, while the BRD used the indication system. 1992 has been an important year in the creation of an abortion rule similar for whole Germany meaning the former BRD and DDR. The now called Schwangeren- und Familienhilfenderungsgesetz included a time limit with mandatory consultation and advice procedures. This piece of legislation had been created on the 26th June 1992 and entered into force in October 1995.126It entailed, next to several new Articles, changes of the German Penal Code of which the most important change was that of 218a. Moreover, the Schwangerschaftskonfliktgesetz, giving information about the consultation procedure that has to be followed, has also been created in 1995.127 However, not all of the 16 Bundeslnder of Germany accepted this legislative documents. The Catholic orientated Bundesland Bavaria created its own rules namely the Bayerisches Schwangerschaftsberatungsgesetz and the Bayerisches Schwangerenhilfeergnzungsgesetz.128,129,130 Those laws mentioned extra restrictive criteria for doctors performing an abortion e.g. only a certain percentage of incomes of a clinic could come from pregnancy determination acts. These rules did not last for a long time since the German Federal Constitutional Court declared in 1998 certain
C. Louis, Die Abtreibung in der Rechtsgeschichte. In: Ders., Kirchliches und Wirkliches im Recht. Aufstze und Besprechungen zu Rechtsgeschichte, Kirchenrecht und Staatskirchenrecht. Hildesheim 1988, p. 128-129. 121 Strafgesetzbuch, in der Fassung der Bekanntmachung vom 13.11.1998 (BGBl. I S. 3322), zuletzt gendert durch Gesetz vom 02.10.2009 (BGBl. I S. 3214) m.W.v. 22.10.2009. 122 German Penal Code: 34 Rechtfertigender Notstand Wer in einer gegenwrtigen, nicht anders abwendbaren Gefahr fr Leben, Leib, Freiheit, Ehre, Eigentum oder ein anderes Rechtsgut eine Tat begeht, um die Gefahr von sich oder einem anderen abzuwenden, handelt nicht rechtswidrig []. 123 Gesetz ber den Mutter- und Kinderschutz und die Rechte der Frau vom 27. September 1950, Gesetzblatt der Deutschen Demokratischen Republik 1950 S. 1037. 124 Gesetz ber die Unterbrechung der Schwangerschaft vom 9. Mrz 1972, Gesetzblatt der Deutschen Demokratischen Republik 1972 Teil I. S. 89, paragraph 1 sub 2. 125 Criminological reasons refers mostly to cases of incest or rape. 126 Schwangeren- und Familienhilfenderungsgesetz vom 21. August 1995, Bundesgesetzblatt, Jahrgang 1995, Teil I. 127 Schwangerschaftskonfliktgesetz vom 27. Juli 1992 (BGBl. I S. 1398), das zuletzt durch das Gesetz vom 26. August 2009 (BGBl. I S. 2990) gendert worden ist. 128 Gindulis 2003, p. 125. 129 Gesetz ber die Schwangerenberatung (Bayerisches Schwangerenberatungsgesetz - BaySchwBerG) vom 9. August 1996, 2170-2-A, GVBl 1996, S. 320. 130 Gesetz ber ergnzende Regelungen zum Schwangerschaftskonfliktgesetz und zur Ausfhrung des Gesetzes zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen (Bayerisches Schwangerenhilfeergnzungsgesetz - BaySchwHEG) vom 9. August 1996, 2170-8-UG, GVBI 1996, S. 328.
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Articles of those laws incompatible with the German Constitution and void since these restrictive rules were contrary to the federal rules of abortion.131, 132 2.2 Illegal Abortion and the Rules in Criminal Law Wer eine Schwangerschasft abbricht, wird mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe bestraft is the first centence of 218 of the German Penal Code.133 One shall see that the general rule is stating that abortion in Germany is illegal. However, by taking a closer look to the next paragraphs, one shall moreover come to the conclusion that there are cases under which the illegality of abortion can be justified. All relevant Articles will further be explained in this chapter. 2.2.1 218 of the German Penal Code As mentioned earlier, according to 218, which is the general clause of abortion in German law, the termination of a pregnancy is illegal. One shall realise that, according to sub 1 of 218, one can only talk about abortion after implementation of the fertilized ovum. This means that all methods, preventing that implementation, e.g. all kind of contraceptives, are legal. Moreover, one will see that all other paragraphs of the German Penal Code are protecting humans after the birth. This means that one cannot talk about e.g. abuse of a foetus. Another person than the pregnant woman performing an abortion under 218 will be punished with imprisonment of maximum three years or a fine. Under aggravated circumstances, the imprisonment will be at least 6 months with a maximum of five years. Such aggravated circumstances are e.g. acting against the wish of the woman or recklessly risking the death or severe damage of the pregnant woman. If the woman herself performs the abortion, she will be, according to sub 3 of 218, punished with maximum one-year imprisonment or a fine. However, 218a of the Penal Code contains criteria under which an abortion can be justified. 2.3 Legal Abortion According to the German Penal Code and Other Legislations

2.3.1 General Information Paragraph 218a of the German Penal Code is the most important paragraph concerned with legal abortions. That paragraph is talking about the situations under which abortion can be legally performed. Moreover, the German Penal Code is stating in 219 that abortion must be performed according to a consultation procedure. This is the basis for the procedure, which is further elaborated in the Schwangerschaftskonfliktgesetz and in the Schwangeren- und Familienhilfenderungsgesetz. 2.3.2 Aspects of the Legal Abortion

Emergency situation Paragraph 218a of the German Penal Code divides abortions into categories according to the indication model used as reason for the termination of the pregnancy.134The
BVerfG, 1 BvR 2306/96 vom 27 Oktober 1998, Absatz-Nr. (1 - 368). Author unknown, Abtreibung: Sondergesetze in Bayern, Deutsches rzteblatt 1996, 93(33) (<www.aerzteblatt.de>). 133 Strafgesetzbuch, in der Fassung der Bekanntmachung vom 13.11.1998 (BGBl. I S. 3322), zuletzt gendert durch Gesetz vom 02.10.2009 (BGBl. I S. 3214) m.W.v. 22.10.2009. 134 ProFamilia, Standpunkt Schwangerschaftsabbruch 2006, p. 7-8.
131 132

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German Penal Code is thus not specifically mentioning emergency situation, but is referring to one of the indications. Sub 1 Without Indication135 Pregnancy determinations undergone without any background reason e.g. an unwanted pregnancy based on the pure wish of the woman to undergo an abortion, are called abortions without indication. This category is mentioned in 218a sub 1 of the German Penal Code. In such cases, an abortion can only be performed within the first trimester. Moreover, the abortion must be performed by a doctor and the woman has followed the, by 219 Penal Code prescribed, consultation procedure. This procedure is based on the Schwangerschaftskonfliktgesetz and will be discussed later on. Sub 2 Medical Indication136,137,138 Sub 2 of 218a is devoted to abortions with medical indication. Medical indication refers to cases in which there is life threatening situation or a serious danger for the health of the pregnant woman. Next to the health of the pregnant woman, the health of the unborn can also lead to a medical indication. Moreover, it shall not be possible that the above-mentioned danger could be averted in another reasonable way than abortion. One should remember, while discussing the history of abortion in Germany, the eugenic abortion, based on a genetic disease of one of the parents. The term eugenic has been omitted since the legislator did not want to create the mentality that a handicap would be a reason for undergoing an abortion. However, this omission has led to discussion. Sub 2 of 218a does not mention any time limit, where sub 1 and 3 do mention the 12 weeks limit. Would it be possible to determine the pregnancy based on a genetic abnormality? Does it mean that the time limit for an abortion is the birth? In practice, in cases in which the abnormality has been diagnosed after the first trimester and in which the woman wants to undergo an abortion based on that diagnose, experts and psychiatrists will be involved. One will than ascertain whether or not the mental health of the woman is in such a serious danger that the abortion could be justified. According to 218a sub 2 the notion of one doctor should be sufficient. Nevertheless, if that doctor cannot prove that its action is based on enough research, he/she could be punished under 218b of the German Penal Code. Beside the missing time limit, there has been no mentioning of the consultation procedure that has to be followed, until 2010. By the entering into force of the new version of the Schwangerschaftskonfliktgesetz of 1992 several rules concerning medical indication have been changed.139 The woman must follow specific consultation procedures in which a doctor has an information duty and will, or will not, diagnoses the medical indication. Moreover, there must be a reflection period of three days between the consultation of the doctor and the delivery of the written document to prove the medical indication.140 One shall moreover notice that the same doctor who did the consultation in which the medical indication has been determined cannot perform the abortion.
Dettmeyer 2006, p. 159. ProFamillia, Schwangerschaftsabbruch 1991, p. 25-26. 137 BMFSFJ, Schwangerschaftsberatung 218 2010, p. 9. 138 Dettmeyer 2006, p. 159-160. 139 ProFamilia, Schwangerschaftsabbruch mit Medizinischer Indikation 2010, p. 1-5. 140 SchKG 2a sub 2.
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Before the change in 2010, 218a sub 2 has been seen as some kind of left over clause since there was neither time limit nor a consultation procedure that has to be followed. Now the only thing left unregulated is the time limit, the imago of 218a sub 2 has been changed. Sub 3 Criminal Indication141,142,143 Next to the medical indication, 218a sub 3 mentions the criminal indication. If, according to the medical experience of the doctor, the woman has been a victim of an illegal act mentioned in 176-179 of the German Penal Code and that act has led to the pregnancy of the woman, doctors talk about abortion based on criminal indication. The acts mentioned in 176 until 179 are: sexual abuse of children, sexual coercion, rape, and sexual abuse of persons incapable of resistance. Next to the causal link between the act and the pregnancy, 218 sub 3 mentions a time limit set at 12 weeks after fertilization. Since the decision of whether or not there has been an illegal act performed on the woman is based on the medical view of a doctor, the woman shall be able to prove such an act by e.g. other injuries. It will be up to the doctor to make the decision based on his knowledge and power of estimation.144 Moreover, involvement of other agencies e.g. police will not be necessary in light of the medical secrecy of doctors.145 The criminal indication as well as the above mentioned medical indication must be proven by an attest of the doctor who determined the indication. In both cases, the doctor determining the indication and performing the abortion cannot be the same person. Sub 4 Abortion Between the 12th and 22nd week of gestational age after consultation procedure146 The first sentence of 218 sub 4 states that the pregnant woman is not punishable under 218 if the abortion, after the consultation procedure of 219, is performed by a doctor and no more than 22 weeks have passed since the conception. The Court can moreover refrain from punishment if the pregnant woman has been in a situation of distress at the time of the abortion procedure. Were in the first situation consultation procedure a time limit until the 22nd week is mentioned, there is no one in the second case distress. As a situation of distress shall be seen: situations of external constraints e.g. conflicts with the environment, treats of the father of the unborn etc, but also situations that would not occur under a normal pregnancy e.g. try of self-abortion.147,148 One shall notice that an abortion after the 12th week and before the 22nd week in case of distress only leads to an action free from punishment for the pregnant woman. Doctors doing the abortion are however performing an illegal action. Since this action, stemming from 1976, thus includes a high risk to be prosecuted for several actors in

ProFamillia, Schwangerschaftsabbruch 1991, p. 26. BMFSFJ, Schwangerschaftsberatung 218 2010, p. 9-10. 143 Dettmeyer 2006, p. 160. 144 Schnke e.a 2006, 218a Rn. 42. 145 ProFamilia, Standpunkt Schwangerschaftsabbruch 2006, p. 7. 146 BMFSFJ, Schwangerschaftsberatung 218 2010, p. 10. 147 Gropp 1981, p. 224-225. 148 Zller a.o 2008, p. 92-93.
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the abortion process, except for the women undergoing an abortion, it will presumably be of little importance in praxis.149 Information Duty

219 of the German Penal Code According to a Court ruling of 1993, the consultation procedure mentioned in 219 shall be used to secure the life of the unborn and convince the women of carrying the pregnancy to term.150This is a rule based on Articles 1 and 2 of the Constitution according to which the German State has to secure the life of every human being including the life of an unborn. The first sentence of 219 Penal Code is stating that during the consultation procedure, the woman shall be encouraged to give birth to the child and she shall moreover be informed about the fact that the unborn has, at every moment, a right to live. An abortion shall therefore only be performed in exceptional circumstances. The consultation procedure shall help the woman to make a conscientious decision, which will only be abortion in cases in which the pressure of giving birth to the child is so high and intolerable that it would exceed a reasonable threshold of sacrificing life. The Schwangerschaftskonfliktgesetz (SchKG) The second sentence of the above mentioned 219 of the German Penal Code is referring to the Schwangerschaftskonfliktgesetz (SchKG).151This law entered into force in 1995, together with the changes made to 218a ff of the German Penal Code and the entering into force of the Schwangeren- und Familienhilfenderungsgesetz (SFHndG). The SchKG entails in 5 and 6 detailed rules about the consultation procedure that has to be followed. One shall notice that the SchKG has to be used in several cases such as in cases of abortion within the 12 weeks time limit of the criminal indication as well as abortions based on medical indications. Next to the abortion information, information about contraceptives, family life and general information about pregnancy shall be given.152 According to 3 in conjunction with 8 of the SchKG, such consultation procedure shall be performed in special institutions called Beratungsstellen advice centres. The Bundeslnder have to ensure that there are enough centres in each region.153 A centre will be accepted and recognized by law if it can prove the just application of the rules contained in the SchKG. The specific criteria are mentioned in 9 of that law. After the consultation, the centre shall give the woman attestation proving that she has undergone a consultation procedure as prescribed by 5 until 6 of the SchKG. Reflection Period The reflection period is a relatively new aspect of the German abortion law. Since the changes of the SchKG on the first of January 2010, there is some kind of reflection period. Paragraph 2a sub 2 SchKG is mentioning this reflection period for abortions with medical indications ex 218a. In such a case, there must to be three days between

R. Trips-Hebert 2008, p. 1. BVerfGE 88, 203 vom 28. Mai 1993, Absatz-Nr. 184. 151 Schwangerschaftskonfliktgesetz vom 27. Juli 1992 (BGBl. I S. 1398), das zuletzt durch das Gesetz vom 26. August 2009 (BGBl. I S. 2990) gendert worden ist. 152 SchKG, 1-2a. 153 SchKG, 3 and 8.
149 150

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the oral notification and the written attestation of the medical indication with which the woman can go to another doctor for the performance of an abortion.154 First and second trimester Abortions during the fist trimester fall under 218a sub 1 Penal Code. There will be no need for further specification of a medical or criminal indication. The only duty during this stage is the consultation procedure that shall be followed based on 219 of the German Penal Code. However, if there would be a criminal indication, abortion will also be justified during the first trimester. One possibility to undergo an abortion after the 12th week after fertilization is the medical indication ex 218 sub 3 Penal Code. Another basis can be 218a sub 4 of the German Penal Code, however one shall notice that an abortion after the 12th week and before the 22nd week in case of distress only leads to an action free from punishment for the pregnant woman. Doctors doing the abortion are however performing an illegal action. Both cases have been discussed earlier. Late abortion Late abortion in Germany will always be performed based on medical indication. Only in such a case, there is no time limit set by the German Penal Code.155 For the allowance to perform a late abortion under the medical indication, there must be prove that the unborn child must suffer an incurable disease or malformation e.g. spina bifida. In 2009, there have been 237 late abortions meaning abortions after the second trimester.156 Such abortions are performed by a so-called feticide. The unborn will be injected, through the mothers womb, with a deathly dose of potassium. This fluid will result in the death of the foetus. Paragraph 218a sub 2 mentions no time limit, however there is a three days reflection period. The topic of late abortion is a highly discussed one in Germany.157 There are doctors, not wanting to perform late abortions. In such cases, the doctors are not obliged too according to 12 of the SchKG. This right extends not only to doctors, but also to all other persons playing a role in the abortion process e.g. nurses or anesthetists. Treatments of the woman before and/or after the abortion do not fall under 12 SchKG. However, according to sub 2 of 12 SchKG, there is an exception to the first sub- paragraph in cases in which the health of the woman is in serious danger or even life threatening, that the only way to safe the womans life would be an abortion. The participation of the doctors and other persons involved will be necessary. 2.4 Abortion Clinics and Costs158,159 Germany does not focus on the place where the abortion will be performed; it focuses on the place of the consultation procedure. The Schwangerschaftskonfliktgesetz mentions in 13 that the instances, where an abortion can be performed, need to secure
G. Klinkhammer, Reform des Schwangerschaftskonfliktgesetzes: Mehr Beratung, Deutsches rzteblatt 2009, 106(47) (<www.aerzteblatt.de>). 155 See Sub 2 Medical Indication and 218a sub 2 of the German penal Code. 156 ProFamilia, Fakten und Hintergrnde (1) 2008, p. 2. 157 M. Rittgerott, Sptabtreibung: "Es war doch schon ein Mensch", Stern.de, 26. Oktober 2008 (<www.stern.de>). 158 Bundesministerium fr Familien, Senioren, Frauen und Jugend, Schwangerschaftsabbruch nach 218 Strafgesetzbuch, 7. Mei 2010 (<www.bmfsfj.de>). 159 ProFamilia, Kosten des Schwangerschaftsabbruchs, 19 July 2010 (<www.profamilia.de>).
154

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the possibility of the necessary follow-up treatment. Each Bunderland ensure that there are enough doctors who will be able to perform abortions. The costs of an abortion in Germany depend on the indication, the type of insurance and on the financial status of the woman. For woman ensured at a statutory health insurance company and wanting an abortion performed without indication, meaning those falling under 218a sub 1 and 4 of the German Penal Code, the costs will partly be covered by the health insurance. The word partly is referring to the fact that not the total costs will be paid by the insurance, but only some specific costs e.g. medical advice prior to the abortion, medical services and drugs before and after the procedure in cases in which the purpose is the protection of health and lastly, if necessary, treatment of complications. However, the costs of the actual termination of the pregnancy will not be paid for by the health insurance. These costs will be about 360 Euro for a medical abortion and about 460 for surgical abortion. In case of a hospitalisation, the daily costs will also be for account of the woman.160 Next to the statutory health insurances, there are private health insurances in Germany. For woman ensured at a private health insurance company, none of the costs resulting from an abortion will be paid for. One must look at the contract agreed on with the health insurance to look at the basis for the services provided by that institution.161 For women with a low income, the Gesetz zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen (SchwHG) provides some extra possibilities.162,163 According to the publication of the Federal Ministry, the income limit has been set at 1001 euro.164 This means that woman having an income lower that 1001 Euro can rely on the rules contained in the SchwHG. The Bundeslnder than have to pay the costs they are committed to pay by the SchwHG to the health insurance. If a woman wants to use this possibility, she has to apply for it at the health insurance before the actual abortion. It will not be necessary to state reason, it will however by possible that the health insurances wants evidence of the income. One shall clarify that the income under the SchwHG only depends on the income of the woman and will not be related to the income of her partner, nor parents nor any other dependent people.165 In case of an abortion according to 218a sub 2 and 3 of the German Penal Code, the total costs will be compensated by the statutory health insurance.166 Private health insurances have paid for abortions based on medical indication. The question whether a private health insurance will pay for criminal indication abortions will depend on the facts of the case. 2.5 Evaluations and trends Profamilia a federal institution composed of 16 regional institutions based on the Bundeslnder and the German Federal Statistical Office publish several documents out of which information about evaluations and trends of abortion can be derived. According to 15 of the Schwangerschaftskonfliktgesetz is the Federal Statistical Office
ProFamillia, Schwangerschaftsabbruch 1991, p. 11. ProFamillia, Schwangerschaftsabbruch 1991, p. 11-12. 162 Gesetz zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen vom 21. August 1995 (BGBl. I S. 1050, 1054), das zuletzt durch Artikel 98 der Verordnung vom 31. Oktober 2006 (BGBl. I S. 2407) gendert worden ist. 163 ProFamillia, Schwangerschaftsabbruch 1991, p. 12-13. 164 Bundesministerium fr Familie, Senioren, Frauen und Jungend, Bekanntmachung ber die nach 1 Absatz 2 in Verbindung mit 6 des Gesetzes zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen ab dem 1. Juli 2009 geltenden Betrge, 15. Juni 2009, Bundesanzeiger Nr. 92, p. 2217. 165 BMFSFJ, Schwangerschaftsberatung 218 2010, p. 21-22. 166 ProFamilia, Standpunkt Schwangerschaftsabbruch 2006, p. 8.
160 161

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publishes and produces statistical information about abortions in Germany. The information that shall be given to that Federal Office is mentioned in 16 of the same law.167 2.5.1 Numbers of Abortion There have been 110.694 abortions performed in Germany in the year 2009. This number is about 3% decreased compared to 2008.168Looking back at the last years, one will note an increase of abortions between 1996 and 2001. Since 2002 however, the number of abortions is decreasing. Specialists base the increase between 1996 and 2001 on two things. First of all, they are talking about a change in sexual behaviour of the youth. There are more early starters, people having sexual relationships from an earlier age onwards, which results in more possibilities of getting pregnant. Secondly, statistical methods evaluated and the information given to the Statistical Office has been increased whereby more abortions have been notified.169 Comparing the abortion numbers of Germany to the rest of the Europe, more specific abortions of women with an age between 15 and 19, it will end on the third place with 16/1000 abortions after the Netherlands (12/1000) and Belgium (14/1000).170 2.5.2 Gestational Age According to the gestational age of the foetus, one will notice a difference between the old and the new Bundeslnder of Germany.171In the old Bundeslnder, the percentage of pregnancy determination acts before the 8th week of gestational age has been determined at 50,1%, while the percentage in the new Bundeslnder has been determined at 41,9%. Having performed less early abortions in the new Bundeslnder relates to the higher percentage of abortions undergone between the 10th and 12th week of gestational age of the foetus. The new Bundeslnder have a percentage determined at 22% while the old ones only have 16,5%.172 In the whole Federal Republic, there have been 237 abortions in 2009 out of 110.694 after the second trimester late abortions. 2.5.3 Old Bundeslnder, new Bundeslnder, Berlin and Foreign Countries of Origin173 The division of Germany had several consequences for the creation of a federal abortion rule. This is the background reason for mentioning the old and the new Bundeslnder separately when comparing the numbers of abortion of German woman to the abortions performed in figure 11 Germany on women from
Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010, Introduction. Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010, Introduction Paragraph D. 169 ProFamilia, Fakten und Hintergrnde (1) 2008, p. 1. 170 ProFamilia, Fakten und Hintergrnde (1) 2008, p. 2. 171 The new Bundeslnder are referring to the former DDR while the old Bundeslnder are referring to the BRD. 172 Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010, Introduction Paragraph D. 173 Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010, Paragraph 2.2 sub 3.
167 168

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foreign countries. Berlin will be mentioned separately since parts of Berlin have been devoted to eastern-Germany and other to the west it has been a big discussion in history going beyond the scope of this essay. Looking at figure 11, one will see that the percentage of abortions performed in the old Bundeslnder is 72% of the total number of abortion. This high percentage is related to the inhabitants.174 The percentage of inhabitants living in the old Bundeslnder is 79,9% while the new Bundeslnder only have 15,9% of all inhabitants of Germany. If one compares the numbers of inhabitants with the number of abortions performed, one shall see that there are more abortions performed in the new Bundeslnder.175 Moreover, there are only 0,5% of all abortions in Germany, performed on women not coming from within the Federal Republic. This can be related to the strict abortions rules and the possibility to easily perform abortions in Germany only within the first trimester of the pregnancy. 3 Conclusion After a difficult formation of an abortion rule in Germany, there now are plenty of rules regulation the procedures, such as time limits, that have to be followed when an abortion will be performed. The German Penal Code, together with the Schwangerschaftskonfliktgesetz, is the most important source. Germany legalised abortions during every stage. Abortions during the first trimester will be based on 218a sub 1 or 3 and abortions at a later stage find their basis in sub 2 or 4 of the German Penal Code. Notwithstanding the fact that abortion is legalised, there are several criteria set to it which will be stricter for late abortions than for abortions performed during the first and second trimester. Some examples are the consultation procedure and the time limit together with the new three-day reflection period.

174 175

Das Deutschland-Portal, Lnder, 15 July 2010 (<www.deutschland.de>). Calculation: 72% abortions and 79,9% inhabitants means 0,9 abortions per inhabitant while 19% of abortions and 15,9 % inhabitants gives a number of 1,19 abortions per inhabitant.

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Chapter V Legal Comparison of Abortion Rules in the Netherlands, Belgium and Germany
1 Introduction The Vaalserberg at 322,7 meters above sea level, is the only place on earth where the borders of the Netherlands, Belgium and Germany touch each other. Those three countries are neighbouring countries and yet there laws differ at some points. The following paragraphs will discuss communalities and differences in more details with focus on the legislation regarding abortion. 2 The Abortion Rules

2.1 History The formation of an abortion rule seemed difficult in all three countries. The Netherlands was the first country, of those discussed in this essay, that succeeded in the creation of a pregnancy determination act. After several proposals, the Dutch parliament finally reached an agreement. The Wet Afbreking Zwangerschap entered into force in 1984. About six years later, Belgium followed even though it firstly looked like Belgium would not succeed in the creation of a Belgium wide abortion rule. The Belgium king at that time, king Boudewijn, was a very catholic person refusing to sign any document giving allowance to kill an unborn human being. This resulted in the most dramatic event in the process of the new legislative document, the Wet Betreffende de Zwangerschapsafbreking. King Boudewijn resided in a factual incapability of ruling for one day and during that period, the abortion law has been adopted by its representatives. The Belgian abortion law has led to important changes of some Articles of the Belgian Penal Code. If one thought that the formation of the Belgian abortion rule has been difficult, one should take a closer look at Germany. The seperation into east and west Germany resulted in the existence of plenty different aboriton rules in, what would later be again, one country. After the fall of the Berlin wall in 1989, all those abortion rules came together. The task of the legislator was to bring it all together and create an abortion rule that would be accepted by the old and new Bundeslnder. The changes of the abortion rules contained in the German Penal Code entring took place in 1995 by the entring into force of the Schwangeren- und Familienhilfenderungsgesetz together with the Schwangerschaftskonfliktgesetz. 2.2 Illegal Abortion and Rules in Criminal Law Belgium as well as Germany and the Netherlands start with the assumption that abortion is illegal. This starting point is entailed in the Penal Codes of those countries. However, one Penal Code contains stricter rules than another one. A comparison of the rules concerning abortion, which are adopted in the Penal Code, will be given below. 39

figure 12

2.2.1 Penal Codes The Penal Code of the Netherlands is stating in Article 82a and Article 296 that abortion is illegal. Article 82a Dutch Penal Code is referring to abortions after the second trimester late abortions while Article 296 is talking about abortions in the first or second trimester. One shall notice that Article 296 sub 5 Dutch Penal Code is referring to another legislative document of the Netherlands, namely the Wet Afbreking Zwangerschap. There are thus only two Articles in the Penal Code of the Netherlands talking about abortion and all other rules are regulated in a separate abortion law. Unlike the Netherlands, the rules of Germany and Belgium contained in the Penal Codes are considered more important. Those two countries have also separate rules regulating abortion, however the rules contained in the Penal Code are regarded as the most important ones. Firuger In Belgium, the Wet Betreffende de Zwangerschapsafbreking is nothing more than a document changing several Articles of the Belgian Penal Code. The abortion law is thus quasi implemented in the Belgian Penal Code. Article 350 Penal Code is mentioning the criteria for a legal abortion. Cases not falling under that Article shall be illegal ex Article 351. The main Article of the German abortion rules is the probably the most discussed paragraph of the German Penal Code in the recent years, 218a. This paragraph is stating all criteria for the justification of an abortion. The criteria are further specified 219 German Penal Code and in other legislative document e.g. the Schwangerschaftskonlfiktgesetz. Germany thus is the only country of the three that are compared in this essay in which the abortion rule is based on the Penal Code and not on a separate abortion rule. 2.3 Legal Abortion

2.3.1 General Information Even though the general rule in every country is the illegality of abortion, there are justifications. The main justifications rules of legal abortions are to be found in the Wet Afbreking Zwangerschap of the Netherlands, the Wet Betreffende de Zwangerschapsafbreking and the Penal Code in Belgium and in the Penal Code of Germany. 40

Most of the aspects of legal abortion, as discussed below, are similar. The time limit is the main point of difference between the pregnancy determination acts in Germany, Belgium and the Netherlands. 2.3.2 Aspects of the Abortion Rules

Emergency Situation The pregnancy determination acts of Belgium and the Netherlands are talking about an emergency situation of the woman as a criterion for abortion in Article 350 Penal Code respectively Article 5 Wet Afbreking Zwangerschap. Another similarity is the fact that neither the Dutch nor the Belgian legislative organs have clarified this concept. The courts in both countries had to explain and clarify the meaning of such a situation, which they did by stating that an emergency situation shall be seen as the consequence of the unwanted pregnancy of the woman resulting in physical or psychological health problems. Moreover, it shall be clear that such an emergency situation is key criterion for a legal abortion in Belgium and the Netherlands. Contrasting the rules in the two above-mentioned countries, the concept of emergency situation does not exist in that sense in Germany. The German abortion rule is based on the concept of different indications used to determine the base of the abortion. One of those, medical or criminal, indications shall be mentioned as reason for the termination of the pregnancy. Reflection Period Concerning the reflection period, one shall notice that Germany is lacking behind. Belgium and the Netherlands have both, since the beginning, a reflection period contained in their abortion laws. Germany however, only regulated the reflection period in January 2010. Another difference between Germany and the other two compared countries is the duration of the reflection period. According to Article 3(1) Wet Afbreking Zwangerschap and article 350(3) Belgian Penal Code the reflection period has to be five days, meaning that the abortion can only be determined on the sixth day after the consultation. One shall also mention that in the Netherlands, the reflection period for overtime treatments is more flexible, since those abortions can only be undergone within a strict time period, and can thus be shorter than five days. In Germany, the reflection period has been set at three days according to 2a(2) of the Schwangerschaftskonfliktgesetz and is only applicable to medical indications. First and Second trimester The law in Germany, Belgium and the Netherlands justifies abortions during the first trimester. The wish of the woman to terminate the pregnancy is sufficient. For abortions during the second trimester, there are more criteria to be fulfilled, except in the Netherlands. The Netherlands has the same rules for fist and second trimester abortions. Belgium and Germany have stricter rules. In Belgium, second trimester abortions may only be performed in cases of health problems of the woman or the foetus. The pure wish to undergo an abortion is not sufficient in such a case. In Germany, second trimester abortion can be performed in cases of medical indication, as in Belgium, but also in cases in which the woman has followed the consultation procedure. One shall mention in this paragraph that the Netherlands has separate rules for overtime treatments. The concept of overtime treatments is not regulated in the other two countries. 41

 Late Abortions In the Netherlands, late abortions can be performed under certain criteria. There has been made a distinction between two categories and under each category, there are specific criteria. Those criteria can be summarised in health issues resulting in the death of the foetus before birth and health issues, which would lead to an abnormal life of the unborn at a later stage. The rules in the Netherlands concerning late abortions are the most flexible ones compared to Germany and Belgium. Germany has stricter rules. The only way of terminating a pregnancy is under medical indication. Belgian is the country in which late abortions will only be performed in very exceptional circumstances and moreover, only in very few hospitals. Because of the quantity of catholic hospitals in Belgium, who are against abortion, it is very difficult to get a clear picture about the number of late abortions. A schematic overview: v The Netherlands First Trimester Second Trimester Late Abortions

can be legalised

specific criteria

Belgium Germany

very exceptional

medical indication only

very exceptional

figure 13 Furthermore, all three countries have a clause contained in the rules regulating abortion that is stating that neither a doctor nor any other person involved in the process of terminating a pregnancy shall be obliged to cooperate in the course of action.

2.4 Abortion Clinics and Costs The health insurance system of Belgium, Germany and the Netherlands is extensive enough to cover the costs of an abortion. However, it is required that the woman wanting to undergo an abortion is registered at the health insurance. That insurance reimburses women living in the Netherlands and being registered according to the AWBZ. Woman coming from a foreign country and wanting to undergo an abortion in the Netherlands will have to pay between 200 and 400 Euro depending on the treatment needed. Belgium has almost the same system, however, women need to pay a very small amount of money, about three Euros. Germany has another way of dealing with the costs of an abortion according to 218a sub 1 and 4 Penal Code. Here the starting point is that women have to pay for the abortion themselves. Only some costs will be covered by the statutory health insurance. The actual costs of the abortion will be between 360 and 460 Euro. However, abortions based on criminal and medical indication will be totally covered by the statutory health insurances. The private health insurances will, in most cases, not bear any costs of an abortion, but there have been exceptions in cases of criminal or medical indication.

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2.5 Evaluations and trends There are organizations in each of the three compared countries that have been assigned to track and register the number of abortions and put them into a statistical report. In Belgium and the Netherlands, those organizations are mentioned clearly by law. Those institutions are respectively the Evaluation Committee publishing every two years and the Rutger Nisso Group publishing the national abortion registration annually. In Germany, there is no separate institution for the publication of abortion related numbers. There is however the German Federal Statistical office to which the abortion clinics and other instances performing abortions shall give enough information to come to an evaluation. 2.5.1 Numbers of Abortion The Netherlands has the highest abortion rate of the three compared countries. It has been determined at about 4 abortions per 1000 woman. In Belgium and Germany, 3,44 of 1000 respectively 2,65 of 1000 woman undergo an abortion.

v The Netherlands Belgium Germany

Total number of abortions 32983 18705 110694

Female inhabitants 8293000176 5442557177 41818100178

Abortions/ 1000 woman 3,98 3,44 2,65

figure 14

The question one could raise now: why does the Netherlands have the highest abortion rate? One could state that this can be related to the fact that abortions in the Netherlands can relatively easy be performed during the second trimester. Other countries like e.g. Belgium and Germany only perform abortions during the first trimester. This can also be related to the quantity of foreign woman coming to the Netherlands, to undergo a pregnancy determination, which will be discussed in detail in point 2.5.3. 2.5.2 Gestational Age The gestational age of the foetus is the main criteria to determine the abortion method. The first trimester abortions are relatively high in all three countries. In the Netherlands, abortions till the 12th week after fertilization are determined at a percentage of 56. Next to the first trimester abortions, there have been 37,4% overtime treatments and 6,6% second trimester abortions. For Belgium, there are no clear numbers. However, related to the methods used, one could state that 83% of the abortions took place during the first trimester. Germany has separate percentages for the old and new Bundeslnder. In the old Bundeslnder, the percentage of pregnancy determination acts before the 8th week of gestational age has been determined at
Centraal Bureau voor Statistiek, Bevolking; kerncijfers naar diverse kenmerken, 19 July 2010 (<www.cbs.nl>). F.O.D. Economie, K.M.O., Middenstand en Economie, Structuur van de bevolking volgens leeftijd en geslacht: geslachtsverhouding, 19 July 2010 (<www.economie.fgov.be>). 178 Statistisches Bundesamt Deutschland, Bevlkerung, 19 July 2010 (<www.destatis.de>).
176 177

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50,1%, while the percentage in the new Bundeslnder has been determined at 41,9%. Having performed less early abortions in the new Bundeslnder relates to the higher percentage of abortions undergone between the 10th and 12th week of gestational age of the foetus. The new Bundeslnder have a percentage determined at 22% while the old ones only have 16,5%.179 Compared with each other, one could see that Belgium has the highest percentage of abortions during the first trimester. This seems logical since abortions in Belgium are only legalised till that period. After Belgium, Germany follows with about 60% of the total abortions performed during the first trimester. The Netherlands has a percentage of 57% and end on the third place. However, if one would count the overtime treatments to the first trimester abortions, the Netherlands would be first in row of abortions performed during that period with 93,4%. 2.5.3 Country of Origin Of all abortions performed in The Netherlands, 25% are related to foreign women. This is a lot more than the abortions of foreign women in Belgium and Germany. Belgium counts only 2% and Germany even less, namely 0,5%. The reasoning behind this massive difference is the possibility of figure 15 undergoing an abortion within the second trimester without problems in the Netherlands. Belgium and Germany are uninteresting countries to consider for a pregnancy determination since the legislation is too strict. Most women, coming from other neighbouring countries will thus travel to the Netherlands instead of to Belgium or Germany. 3 Conclusion Summarising the above stated comparison, one shall see that there are several similarities and differences between the abortion rules of the three neighbouring countries, Belgium, Germany and the Netherlands. The similarities are to be found in the numbers of abortions, the costs and in the aspects of the history of the abortion rules. The three countries belong to the countries with the lowest abortion rates in the European Union. Moreover, each country had a difficult formation of nation wide abortion legislation. However in this similarity, there is a difference. All three countries have as starting point the Penal Code. Nevertheless, the Netherlands have an additional abortion legislation called the Wet Afbreking Zwangerschap which is regulating most of the rules concerned with the pregnancy determination. Germany and Belgium on the
179

Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010, Introduction Paragraph D.

44

contrary have most of the rules contained in the Penal Code. There are separate abortion rules namely the Schwangerschafts-konfliktgesetz respectively the Wet Betreffende de Zwangerschapsafbreking, but these only give additional criteria. Another important difference can be found in the reflection period. Where Belgium and the Netherlands have five-day period for reflection, Germany only regulated a period of three days and this period is not even applicable to all kind of abortion. According to the time limit of abortion, one shall notice that the Netherlands is the country under whose law a woman can terminate her pregnancy at the latest stage according to Wafz. The Netherlands allow an abortion during the second trimester under the same criteria as abortions during the first trimester. The wish of the woman and an emergency situation in such cases is enough to terminate the pregnancy. Belgium and Germany do not allow second trimester abortions without further criteria. In those two countries, there must be e.g. health issues of the pregnant woman or the unborn child to terminate the pregnancy in the second trimester. According to late abortions, one shall see that all three countries perform late abortions under strict circumstances. Belgium however is the most reserved country on this topic. One shall moreover see that Germany and Belgium have more in common with each other than with the Netherlands. The most striking difference between the Netherlands on the one hand and Belgium and Germany on the other hand is the time limit. This might be related to the catholic religion, which is highly against any form of abortion. A similarity between Belgium and Germany that is different from the Netherlands is the location of the abortion related Articles. Where those are to be found in the Penal Code in Belgium and Germany, most rules of the Netherlands are to be found in the Wet Afbreking Zwangerschap. Looking at the cross-border abortions, one shall notice that the Netherlands is the favourite place to travel too for an abortion. The number of foreign woman undergoing an abortion in the Netherlands is much higher than in the other two countries. Shouldnt it than be necessary to regulate the time limit, which lies at the basis for the quantity of foreign abortions in the Netherlands, at European level?

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Chapter VI The European Union

1 Introduction Abortion and the European Union. Should the European Union come to an EU wide abortion rule? The before discussed countries, the Netherlands, Germany and Belgium, all have legal rules containing the allowance to undergo an abortion under specific criteria. Nowadays, there are still three countries Malta, Ireland and Poland in the EU prohibiting abortion. Ireland for example, is, as Belgium and Germany, a very catholic country and under the catholic belief, it is not desirable to undergo an abortion. However, in theory, abortion should be allowed in those countries under specific circumstances, it has been proven very difficult in reality.180Regulating this topic on European level could solve the problem of diversity of abortion rules in the Member States of the European Union, but before such a legislative action can be taken, some criteria must be fulfilled. 2 Legal Acts of the Union

2.1 Background Information The Consolidated Version of the Treaty on the Functioning of the European Union, also called Lisbon Treaty (L-TFEU), which entered into force on the first of December 2009, forms the basis for the adoption of legislation and other legal acts.181,182 The legislative organs of the EU have the possibility to determine which Member States should be bound by it by choosing the form of the legal act. According to Article 288 L-TFEU, the EU shall only adopt regulations, directives, decisions, recommendations and opinions. Regulations are often used for harmonization and uniform application of rules since this legal act will be binding upon all Member States. This is because a regulation will be binding in its entirety and directly applicable in all Member States without the need to take any further measures. Directives on the contrary are only binding upon the Member States to whom they are addressed. This results in the need of an implementation period as deadline for the national legislators to adopt new legislation or change the national legislation in the light of the directive. Next to the regulations and directives, the EU legislators can also adopt decisions and recommendations. Decisions are instruments that shall be binding in its entirety, however it is a decision, which specifies those to whom it is addressed, it shall be only binding on them. The measures of the EU with less influence are recommendation and opinions, which are not binding. Next to the different legal acts, the EU has different competences. The EU-competences can be split up in shared- and exclusive-competences. Shared-competences are areas in which the EU as well as the Member States may legislate and adopt legally binding acts whereas exclusive-competence areas are areas in which the power to legislate has only be conferred to the Union.183 Looking at the topic of abortion, the areas of shared-competences are the most important ones to take a closer look at. Those areas are the internal market, social policy, structure policy and cohesion policy, agriculture and fisheries, the environment, transport, immigration, certain matters of public health Abortion could be seen as a
United Nations, Abortion Policies: A Global Review, New York: United Nations Population Division, 2002. Consolidated Version of the Treaty on the Functioning of the European Union, O.J. 30.3.2010 C 83/47. 182 L-TFEU, Article 1. 183 L-TFEU, Article 2 and 3.
180 181

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subtopic of public health since the performance unsafe abortions forms a serious danger for the health of the women undergoing such a pregnancy determination. 2.2 Legal Basis: General Information For every act of the European Union, a legal basis is needed; such a legal basis has different roles. First, it sets out the possibility to legislate and the scope of the European Union legislation in a specific area. This is derived from the fact that the European Union is an organisation, only having certain competences because the Member States gave up their powers at certain levels and transferred them to the European Union. Secondly, it determines the legislative procedure that shall be followed and the types of laws, as discussed above, which can be adopted.184 Moreover, in the case Commission v. Council the European Court of Justice ruled that:
The choice of the appropriate legal basis for a measure does not depend on the assessment of the Community legislature but must be based on objective factors which are amenable to judicial review.185

2.3 Legal Basis: Abortion Legislation As mentioned before, there must be a legal basis for every legislative document made by the EU. For abortion, this legal basis could be Article 168 L-TFEU. According to that Article, the EU shall ensure a high level of human health protection in the definition and implementation of all Union policies and activities.186 This would mean, that the EU could make a directive, binding upon all Member States to which it is addressed, regulating the health care criteria that need to be followed during a pregnancy determination. However, one should take a closer look at sub 5 of Article 168 L-TFEU. This Article is stating the following:
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States.

The last sentence of the above mentioned Article regulates that there shall be no possibility of creating and adopting incentive measures designed to protect and improve human health by harmonisation of the laws and regulations of the Member States. This thus means, that a Directive, creating general rules concerned with abortion is contrary to the EU legislation, specifically Article 168(5) L-TFEU, since it would harmonise the legislation of the Member States. Next to the legal basis of Article 168(5) L-TFEU, Article 352 of the same Treaty could form a possibility according to which abortion legislation could be adopted.187 This Article is known as the residual competence Article under which legislative proposals that cannot be based on another Article could be adopted. However, all Member States must then approve such a proposal since the Council should act unanimously. Next to

Chalmers 2008, p. 140. Case 68/86, United Kingdom of Great Britain and Northern Ireland v Council of the European Communities [1988] ECR 855, paragraph 24 (<www.unhcr.org>). 186 Chalmers 2008, p. 52. 187 Chalmers 2008, p. 57-58.
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the unanimously of the Council, the European Parliament must give its consent to the proposal.188 The most problematic issue if Article 352 L-TFEU would be used as a legal basis is the approval of all Member States. Since not all Member States of the EU legalised abortion e.g. Ireland, it seems nearly impossible to force them to adopt a directive regulating abortion. Moreover, another problematic issue is the fact that it will not be possible to adopt legislative measures under Article 352 L-TFEU, which would be contrary to Article 168(5) L-TFEU. It will thus not be possible to adopt an overall abortion legislation, which is harmonising the law of all Member States and which would not be allowed under Article 168(5) L-TFEU. Other legal instruments e.g. regulations, recommendations are less interesting since they do not bind all Member States at the same time and are thus less effective. However, the Member States have shown in history that they respect such recommendations. Nevertheless, this would also be a measure of harmonisation and thus not possible under the above-mentioned scopes. 3 Evolutions and Trends

3.1 Resolution of the European Parliament 2002 As stated before, the European Union would not have a legal basis to act on the topic of abortion. However, the European Parliament started an initiative to make abortion legal and safe for every woman in every member state. The resolution of the European Parliament published in 2002 gives several recommendations, which will be discussed below.189 This resolution was based on the Report of Commissioner van Lancker of July 2002.190This initiative was based on the International Conference on Population and Development (ICPD), which took place at Cairo in 1994 and called for a system of safe abortions.191In the review on this report in 1999, the ICPD is stating that in circumstances where abortion is not against the law, health systems should train and equip health-service providers and should take other measures to ensure that such abortion is safe and accessible. Additional measures should be taken to safeguard womens health.192,193 The report of van Lancker goes further, it recommends legalising abortion in every Member State under certain circumstances.194 One shall mention that the resolution of the parliament based on the report is non-binding, however it led to discussions in the countries that have not yet legalised abortion. The recommendations made in the resolution are based on the argument that, in order to avoid abortions in the first place, family planning methods, sexual education shall be further extended to avoid unwanted pregnancies in the current Member States and the candidate
Fairhurst 2010, p. 65. European Parliament, Resolution of the European parliament on Sexual and Reproductive health and Rights, number 2001/2128(INI)), O.J. 12.11.2003 C271 E/369 (<www.europarl.eu.int>). 190 Committee on Womens Rights and Equal Opportunities Anne E.M. Van Lancker, Draft report on sexual and reproductive health and rights, 2 June 2002, number 2001/2128(INI), PE 305.485 (<www.europarl.eu.int>). 191 United Nations Information Population Network, Report of the International Conference on Population and Development, Cairo, 5-13 September 1994 (<www.un.org>). 192 United Nations Information Population Network, Key actions for the further implementation of the Program of Action of the International Conference on Population and Development, New York: United Nations (A/S-21/5/Add.1), paragraph 63.iii. 193 WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003, p. 11. 194 Hgele 2005, p. 27.
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members.195 It also mentions that abortion should not be used as family planning method and to ensure information according to the risks involved in unsafe abortions carried out under unsuitable conditions.196The most radical paragraph of the Resolution is paragraph 12, which is stating the following:
Recommends that, in order to safeguard women's reproductive health and rights, abortion should be made legal, safe and accessible to all.

The European Parliament is thus pleading for the legalisation of abortion in all Member States. Moreover, the Parliament is stating that the courts of the Member States should not prosecute women that have undergone an illegal abortion. Next to the progressive European Parliament, striving for the legalisation of abortion, there is the Vatican and several anti-abortion organisations making their voices heard in the Parliament.197 3.2 Right to life Article 2 of the European Convention of Human Rights (ECHR) is stating, Everyone's right to life shall be protected by law.198 The question that arises is whether an unborn belongs to the category everyone and whether a foetus thus has a right to life? The European Commission of Human Rights, in 1992, decided that the wording of Article 2 ECHR refers to every person already born and can thus not apply to a foetus.199 The background reason was that it could not be possible that the Articles of the treaty, mentioning everyone, are all also referring to an unborn.200In 2004, there has been an important case brought before the European Court of Human Rights called Vo. v. France.201 In that case, the central question was whether an unborn, a foetus, falls under Article 2 ECHR.202 The Court in this case refers to several decisions of the Commission under which the decision that the foetus has no absolute right to life, regarding the health of the mother which shall be protected.203 Moreover, the Commission stated that, if it would grant a higher protection to the right to life of the foetus, it would place the right of the unborn above the life of the mother.204 Concerning the question when life begins, the Commission gives the Contracting States, meaning members of the ECHR, a discretionary power to decide.205,206,207 In 2006, the statement that the definition of the start of a human life belongs to the margin of appreciation of
Macura a.o. 2005, p. 262. European Parliament, Resolution of the European parliament on Sexual and Reproductive health and Rights, number 2001/2128(INI)), O.J. 12.11.2003 C271 E/369 (<www.europarl.eu.int>), paragraph 8-13. 197 Hgele 2005, p. 27. 198Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by protocols No. 11 and 14, Rome, 4.XI.1950..
195 196

European Commission on Human Rights, H. v. Norway, Decision of 19 May 1992, Decision and Reports vol. 73, 155, 167, paragraph 1. 200 J. Pichon, Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights in the Judgment Vo v. France, German Law Journal, Vol.07 No.04, p. 435. 201 European Court of Human Rights, Vo v France, Judgment of 8 July 2004, no. 53924/00 (<www.echr.coe.int>). 202 J. Pichon, Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights in the Judgment Vo v. France, German Law Journal, Vol.07 No.04, p. 433. 203 European Commission on Human Rights, X. v. the United Kingdom, Judgement of 12 October 1978, no. 7215/75 (note 12), 252-53, paragraph 22 (<www.echr.coe.int>). 204 European Commission on Human Rights, X. v. the United Kingdom, Judgement of 12 October 1978, no. 7215/75 (note 12), 252, paragraph 19 (<www.echr.coe.int>). 205 European Commission on Human Rights, H. v. Norway, Decision of 19 May 1992, Decision and Reports vol. 73, 155, 167, paragraph 1 (<www.echr.coe.int>).. 206 J. Pichon, Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights in the Judgment Vo v. France, German Law Journal, Vol.07 No.04, p. 435-436. 207 B. C. van Beers, De Mysterieuze Status van het Embryo, NJB, 2005, 13, p. 678-685.
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the Member States has been repeated in the case Evans v. United Kingdom.208 The conclusion of that case is stating, the definition of human life is within the margin of appreciation. If one would conclude that Art. 2 ECHR applies to embryos; one can also conclude that Article 13 of the Convention on Human Rights and Biomedicine shall apply.209
An intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modification in the genome of any descendants.

People arguing against abortion would probably state that an abortion could be seen as a modification of the foetus and moreover, that an abortion is in some circumstances not a preventive, diagnostic nor therapeutic measure. One shall notice that this discussion is a difficult and complex one since even the European Court of Justice leaves this topic to the margin of appreciation of the Member States with its decision not to decide as mention in Vo. v. France. There has been a decision, yet the discussion has not ended. Next to the European Convention of Human Rights, one shall also mention the Charter of Fundamental Rights of the European Union.210Article 2 of this Charter is stating that everyone has the right to life. It is however, as in the ECHR, not stated at which moment this right start. One could state that the interpretation of Article 2 should be the same as the one of Article 24(2) of the Charter, which is stating that actions concerning children must be interpreted in the best interest of the child. 3.2.1 Right to life based on ECHR compared to the Netherlands, Germany and Belgium According to the ECHR, the right to life starts at the point the child is born. However, it leaves a certain margin of appreciation to the Member States of the European Union. The Netherlands have regulated this is Article 1:2 of the Dutch Civil Code. The Article is stating that the unborn child should be seen as already born as often as it is required in the interest of the unborn. However, the legal personality of a person starts at the moment of birth of the child. A criteria to acquire this legal personality is the fact that the child is born living. Moreover, there is an important case concerned with the question of the legal personality and the rights of an unborn. According to the Baby Kelly case, an abortion is an agreement made between the mother and the institution performing the abortion. It is true that the unborn child has its own rights under Article 1:2 BW however that is not enough to justify that the foetus would be party to the agreement neither is the mother required to bargain for a separate agreement for the unborn child.211 In Germany, according to a Court ruling of 1993, the consultation procedure mentioned in 219 shall be used to secure the life of the unborn and convince the women of carrying the pregnancy to term.212This is a rule based on Articles 1 and 2 of the
European Court of Human Rights, Evans v. United Kingdom, Judgment of 7 March 2006, No. 6339/05 (<www.echr.coe.int>). 209 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo 4.IV.1997, European Treaty Series no. 164. 210 Charter of Fundamental Rights of the European Union, O.J. 18.12.2000 C364/1. 211 HR 18 maart 2005, NJ 2006, 606. 212 BVerfGE 88, 203 vom 28. Mai 1993, Absatz-Nr. 184.
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Constitution according to which the German State has to secure the life of every human being including the life of an unborn. The first sentence of 219 Penal Code is stating that during the consultation procedure, the woman shall be encouraged to give birth to the child and she shall moreover be informed about the fact that the unborn has, at every moment, a right to live. An abortion shall therefore only be performed in exceptional circumstances. The anti-abortion groups in Belgium are referring to the Convention on the Rights of the Child stating in Article 6 that every child has an inhering right to life.213 Moreover, the Belgian Chamber of Representatives points, in its bill amending the Civil Code as regards the granting of legal personality to the unborn child, to the recommendations of the Council of Europe.214 In that recommendation it is stated that every child has a right to life from the moment of conception onwards. This right should be recognized by all national governments, which are obliged to engage every effort to make the full exercise of this right possible.215Furthermore, the Belgian Chamber of Representatives mentions that the right to life of the unborn cannot be related to the wish of the mother to undergo an abortion. The bill aims to recognise the formal legal status of the unborn child. The above mentioned shall lead to the conclusion that the European Union is not harmonising status of the unborn child since there are no specific rules about when the right to life begins. The member states are granted a margin of appreciation about this topic, which they use in different ways. The Netherlands are stating that the right to life and to be a subject of law of the unborn child start after the birth, Germany regulated that the life of the unborn shall be protected, but there are exceptions and Belgium does still not know what to do with their national legislation they did not regulated this topic in detail yet. 3.3 Other evaluations

3.3.1 Refusing treatment based on conscience Next to the rules concerning the circumstances under which an abortion could be performed and the legalisation of abortion in general, the European Parliament wants to set standards for doctors refusing treatment based on their conscience. This would have an important impact on the abortion rules since, according to the termination of a pregnancy; doctors and other actors during the treatment e.g. nurses are now able to refuse treatment. The draft proposal is stating that the right to act based on the conscience of the doctor shall only be granted to the doctor in certain specific cases, however it shall not be granted to state institutions e.g. hospitals in general. This draft will be dealt with at the European Parliament in autumn 2010.216 3.3.2 Example of doctors viewpoint Another issue, related to the topic of refusing treatment based on the conscience of the doctor, is the point of view of doctors. A professor of the University Hospital of Leuven in Belgium was stating that she would not want to perform abortions after the 12
Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49. 214 Belgische Kamer van Volksvertegenwoordigers, Wetsvoorstel tot wijziging van het Burgerlijk Wetboek wat betreft het verlenen van rechtspersoonlijkheid aan het ongeboren kind, 13 November 2007, DOC 52 0363/001, p.4. 215 Belgische Kamer van Volksvertegenwoordigers, Wetsvoorstel tot wijziging van het Burgerlijk Wetboek wat betreft het verlenen van rechtspersoonlijkheid aan het ongeboren kind, 13 November 2007, DOC 52 0363/001. 216 Author unknown, Europarats-Ausschuss will Regeln fr Gewissensgrnde bei rzten, Deutsches rzteblatt, 22 June 2010 (<www.aerzteblatt.de>).
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weeks term.217 Her opinion was related to the fact that women, if a pregnancy determination would be possible after that 12 weeks term, would wait with the abortion. Abortions would then be terminated at a later stage, which would not be good for the mental health of the woman, since the bond with the unborn child would be bigger and there would be a higher risk for a prenatal depression. Moreover, the later the stage of the pregnancy, the more difficult the termination will be for the doctors. 3.3.3 Forum shopping One shall moreover see that it could be possible to regulate the central aspects of the treatment of abortion by creating rules concerned with the health care criteria that need to be followed. However, abortion will stay a difficult topic when wanting to harmonise the term until which an abortion can be performed. Several European Member States have different terms, which leads to forum shopping. Women who cannot undergo a legal abortion in their home country are travelling to other countries where a legal abortion could be possible. Forum shopping thus means, choosing the law, which is the best applicable one for the situation of the women. If the European Union would harmonisation, forum shopping would not be necessary anymore. 4 Conclusion The European Union can only legislate if it has the possibility to do so by getting the power of the Member States. The circumstances under which such a power exists are mentioned in the Treaty of the Functioning. Abortion falls under the topic of public health and according to Article 168 L-TFEU, the European Union would be able to make legislative documents, wouldnt there be sub 5 of that Article. Harmonisation based on public health issues is not justified under Article 168 sub 5 L-TFEU. Since Article 168 L- TFEU does not form a proper legal basis, one could take a closer look at Article 352 L- TFEU. However, that Article cannot for a possibility either since the adoption of a legislative document under that Article needs the approval of all Member States of the European Union. Regarding the fact that not all of those Member States legalised abortion, Article 352 L-TFEU cannot be used as legal basis. The legal basis for a European rule regulating abortion is thus missing. However it is stated that there is no proper legal basis, there are evaluations in the European Parliament, which wants to make abortion safe and legal in every Member State, however it shall not be used as a family planning method and there should be criteria set to the pregnancy determination. The resolution of the Parliament, published in 2002 and based on the Van Lancker report, is however non-binding. The Van Lacker report is pleading for the legalisation of abortion in all EU Member States, a step the European Parliament has not taken yet. The Parliament moreover is trying to change the possibility of the doctors to refuse treatment based on their conscience. Next to the discussed about whether or not there would be a good legal basis, there is a discussion about when the right to life starts. The European Court of Human Rights ruled in its decision not to decide that the answer to this question shall be given by each Member State since it belong to the margin of appreciation of the contracting parties. One shall note that the practice, the way of thinking of doctors, can differ from what has been or will be regulated. There might be an overall abortion rule in the future, however, doctors would accept criteria for the protection of the health of the woman,
217

Information given by Prof. Dr. M. Hanssens, gynecology at UZ Leuven , by phone call to number +32(0)16344215 no rights can be derived from this information.

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but it could be that doctors would not accept a fixed time limit, similar in every Member State since that time limit could be set later than it is now in that specific country. Abortion is a difficult, complex and highly discussed topic. The EU cannot make harmonising legislation with respect to abortion, but nevertheless, the European Parliament took the first steps towards such a legislative document. The future will give the answer to the question whether or not the EU will come up with, the still missing, overall Union-wide abortion rule.

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Chapter VII Reflections

The Netherlands, Belgium, Germany and the European Union, they all have different or even no laws regulating abortion. There is no overall abortion rule applicable to all EU Member States. In this chapter, some reflections and points of interest will be made to give an overview about what one could expect of the events of the future. 1 No Legal Basis As mentioned in the previous chapter, it is clear that the European Union has no legal base for a harmonising abortion rule regulating e.g. the procedures, which have to be used, and the time limits. Neither Article 168 nor Article 352 of the Lisbon Treaty on the Functioning of the European Union can serve as competence to legislate. This makes it clearly difficult to achieve similar rules and comparable modus operandi in all Member States.218 2 Actions of the European Parliament However, one shall notice that the European Parliament is trying to bring the laws of each state closer together by regulating other topics. There has already been a, non- binding, resolution of the European Parliament mentioning abortion and pointing out that a pregnancy determination should not be used as family planning method. Moreover, paragraph 12 of the report pleads for legal and safe abortion accessible to the women of each Member State.219 Another step towards similar rules is the proposal for a Directive of the European Parliament and the Council on the application of patients rights in cross-border healthcare.220 The purpose of the Directive is to create a specific and common framework for cross-border healthcare stating that:
[] the directive will make clear the entitlements of patients to have healthcare in another Member State, including the limits that Member States can place on such healthcare abroad. []

The legal base used for this proposal is Article 114 L-TFEU, which is stating that the Directive shall have as its objective the establishment and functioning of the internal market. The explanatory memorandum moreover mentions the already discussed Article 168 L-TFEU. According to Article 12 of the proposal, national contact points for cross-border healthcare shall be set up. Such national contact points shall:
[] provide and disseminate information to patients in particular on their rights related to cross-border healthcare and the guarantees of quality and safety, protection of personal data, procedures for complaints and means of redress available for healthcare provided in another Member State, and on the terms and conditions applicable. []

If this Directive would enter into force in the future, the problem of forum shopping discussed in Chapter VI sub 3.3.3 would not be solved, but it would be clarified and normalised that patient are able to obtain services in other Member States. Forum shopping is referring to what one could also call abortion tourism. Women are travelling from their own country to another Member State to terminate the pregnancy. Reasons for tourism could be for example the time limit or the criteria for an abortion. For such women, information given by the neighbouring or other Member State could simply and facilitate the step over the border. Such contact points could thus lead to more abortion tourism from Member States in which abortion has not yet been
See Page 44 of this essay. European Parliament, Resolution of the European parliament on Sexual and Reproductive health and Rights, number 2001/2128(INI)), O.J. 12.11.2003 C271 E/369 (<www.europarl.eu.int>). 220 Proposal for a Directive of the European Parliament and the Council on the application of patients rights in cross- border healthcare, Brussels 2nd June 2008, COM(2008)414 final.
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legalised, to those States where the law allows pregnancy determinations. It has not been said that abortion tourism is a positive element, however it shall be mentioned that abortion in non-legalised abortion states are mostly not performed in a safe, clean and hygienic environment.221In other words, health tourism will rise, but it will also lead to a decrease of unsafe practices. 3 Actions of the Council of Europe Next to the proposal for the above-mentioned Directive and the role of the European Parliament, one shall not forget to mention the intentions of the Council of Europe.222 In 2008, the Council of Europe has published report pleading for the access to safe and legal abortion in Europe.223 It is moreover stating that:
The lawfulness of abortion does not have an effect on a womans need for an abortion, but only on her access to a safe abortion.224

In other words, it is clear that there still are restrictions to abortion, but the fear of the Member States that the allowance of abortions would lead to an increase of the number of pregnancy determinations should be abolished. The only consequence would be the decrease of clandestine abortions, which are more traumatic and dangerous.225 4 Time Limits and its effects Furthermore, related to the topics of overtime treatments and late abortions discussed in Chapter II, III and IV, one must notice that the time limit of abortions cannot be regulated either since it would lead to harmonisation of public health provisions. At this very moment, the time limits set to the possibility to terminate a pregnancy differ from Member State to Member State. As mentioned earlier, if the time limit would be set at e.g. 24 weeks of gestational age, it could lead to problems to find doctors willing to perform abortions at such a late stage. Another aspect one should notice is the possible way of thinking of women. If abortions can be terminated at a later stage, it could result in the fact that women are waiting longer to make a decision; whether or not to abort. This would then again lead to more difficult operations, since abortions in a later stage are more complex and take more time than e.g. overtime treatments. 5 Preventive Health Care Last but not least, one shall see that abortions can be avoided by preventive health care e.g. contraceptives, information sessions and all other possible means to lower the rate of unwanted pregnancies and abortions. According to Article 35 of the Charter of Fundamental Rights of the European Union, every citizen has the right to obtain preventive health care and to benefit from medical treatments. Moreover, a high level of human health protection shall be ensured by the Union policies and activities.

WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003. 222 Author unkown, Raad van Europa voor Vrije Abortus, Reformatorisch Dagblad, 19 April 2008 (<www.refdag.nl>). 223 Parliamentary Assembly, Access to Safe and Legal Abortion, Doc. 11537 rev., 8th of April 2008 (<www.assembly.coe.int>). 224 Parliamentary Assembly, Access to Safe and Legal Abortion, Doc. 11537 rev., 8th of April 2008, para. 34 (<www.assembly.coe.int>). 225 Parliamentary Assembly, Access to Safe and Legal Abortion, Doc. 11537 rev., 8th of April 2008, para. 34 (<www.assembly.coe.int>).
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6 Discrimination Next to the preventive health care Articles of the Charter of Fundamental Rights of the European Union, the Charter is also mentioning the principle of non-discrimination in Article 21. There shall be no discrimination based on:
[] any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation []

Moreover, Article 10 of the L-TFEU is stating that the European Union shall aim to combat discrimination by implementing and defining its policies and activities. If abortion can legally be undergone in one Member State, but not in another, isnt this fact discriminating for women? A men will not be discriminated by this situation since he would, at least not in a natural way, be able to undergo an abortion in any Member State. Women on the other hand can be discriminated by giving her the possibility of undergoing an abortion in Member State X but not in Member State Y. This discrimination can go even further by stating that the possibility or the non-possibility of such a health care provision can restrict her freedom of movement ex Article 45 L- TFEU. A woman could decide not to use this freedom entitled to her by law, since she would, in case of an unwanted pregnancy, not be able or only under more difficult criteria, to terminate that pregnancy in another Member State. 7 Conclusion Summarising one should notice that abortion couldnt be legalised by harmonisation based on Article 168 or 352 L-TFEU. Nevertheless, it seems possible to regulate certain health care provisions based on Article 114 L-TFEU. The reference to Article 114 L- TFEU in this case is based on the fact that the European Parliament also used this Article as legal base in its proposal for the Directive on the application of patients rights in cross-border healthcare, which has been mentioned before. Wouldnt it than be an option to take care of the circumstances under which an abortion is performed? The most important issue in case of abortion is not the legalisation of it in every Member State; it is the need for safe abortions. If women could travel to other Member States according to the proposed Directive on the application of patients rights in cross-border healthcare, it would lead to a decrease of unsafe abortions. Another aspect, which shall be mentioned, is the anti-discrimination mentioned in Article 10 L- TFEU and Article 21 of the Charter of Fundamental Rights. One shall question if the fact that there are no similar abortion rules in the European Union lead to a discrimination of women.

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Chapter VIII Conclusion

Abortion. An EU Concern? is the title and main question of this essay. Shall the European Union make an overall abortion rule? Are the laws of the Member States that different that such a rule is needed? To get to know whether the law of the Member States differs, this essay focussed on three neighbouring countries: the Netherlands, Belgium and Germany. The Netherlands The Dutch Penal Code states in Article 82a in conjunction with Article 192 that abortion is illegal but can be justified under the rules contained in the Wet Afbreking Zwangerschap (Wafz).226 The Wafz mentions criteria, e.g. emergency situation, reflection period and the gestational age of the foetus, to consider the legality of the abortion. Related to the gestational age, two terms shall be mentioned. The first one is overtime treatment meaning an abortion performed within the first 16 days over time. For such a pregnancy determination, the Netherlands utilise a flexible reflection period, which can then be less then five days.227 The next term is late abortion which is referring to an abortion after the second trimester. Such abortions are legalised in the Netherlands when certain conditions are fulfilled. Whether or not the criteria are fulfilled will be decided by the Public Prosecutor of the Netherlands and an Expert Committee for evaluation of reported cases of late abortion or euthanasia of newborns.228 Next to the specific time criteria of the overtime treatments and the late abortions one shall notice that the general clause in the Netherlands is the allowance of pregnancy determinations till the 24th week of gestational age. This limit can be derived from Article 296(4) Dutch Penal Code, which is referring to the Wafz. According to the recent evaluation and trends one could see that the Netherlands has a high rate of foreign women coming to the Netherlands for a pregnancy determination.229 However, the total rate of performed abortions, 32.983 abortions in 2008, is low compared to other EU Member States.230 One shall not forget to mention the Dutch organisation Women on Waves which is an organisation providing abortions on a ship in places where a pregnancy determination is not legalised. Belgium Firstly, one shall notice that the Belgian abortion rules are talking about two different terms: vruchtafdrijving is referring to illegal abortions ex Article 351 Penal Code and zwangerschapsafbreking is referring to the legal abortions. Next to the Penal Code, the Wet Betreffende de Zwangerschapsafbreking (WBZ), which entered into force after the solution of the abortion crisis by the Belgian government, adjusted the Belgian Penal Code Articles concerning abortion. The most important Article of the WBZ is Article 2, which was concerned with the reformulation of Article 350 Penal Code, now stating among other criteria that the pregnant women must be in an emergency situation. A doctor, who has an information duty, will also be the person
See also page 11. Wafz, Article 3. 228 Regeling van de Staatssecretaris van Volksgezondheid, Welzijn en Sport en de Minister van Justitie (nr. 5471313/07), Regeling (houdende de instelling van de) Centrale Deskundigencommissie Late Zwangerschapsafbreking in een Categorie 2-geval en Levensbeindiging bij Pasgeborenen, Staatscourant, 13 March 2007, nr. 51 (see also page 14). 229 See also page 16. 230 See also page 15.
226 227

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to determine such an emergency situation. Next to the emergency situation, there must be a reflection period of five days, meaning that the doctor cannot perform an abortion before the sixth day after the first consultation. Concerning the time period under which abortions can be performed in Belgium, one shall notice that Article 350 paragraph 1(a) has limited the legal abortions to the first trimester and can only be undergone in abortion clinics or hospitals with an allowance. Nevertheless, there are exceptional circumstances under which an abortion in a later stage can legally be terminated. Such pregnancy determinations can only be undergone in hospitals after an exhaustive check of an ethic committee and only if the unborn suffers one of the diseases listed in parliamentary documents.231 Late abortions still belong to a veto subject in Belgium; however, there have already been abortions after the second trimester. Since abortions in Belgium are only legalised during the first trimester, the amount of foreign women travelling to Belgium is very low, meaning only 2% of the total number of pregnancy determinations. Not only the foreign abortions are low, the total abortion rate of Belgium, 14.923 in 2007, is also relatively low compared to the rest of Europe. Germany The abortion rules of Germany are to be found in the Penal Code. However, there are other legislative documents stating additional rules and criteria e.g. the Schwangerschafskonfliktgesetz, which is stating the rules to be followed during the consultation procedure. The German Penal Code is the starting point if one would like to figure out whether an abortion could be legally undergone in Germany. This legislative document mentions, in Article 218a Penal Code, several indications on which a pregnancy determination can be based. Sub 1 is mentioning the criteria for cases in which none of the indications mentioned in sub 2 or 3 is applicable. Sub 2 is talking about medical indication, referring to a medical problem of the mother or the unborn child. Sub 3, concerning the criminal indication, is based on a criminal act, which has led to an unwanted pregnancy. The criteria that must be fulfilled depend on the indication. A sub 1 abortion can only be performed after the consultation procedure has been followed with a time limit set to the 12th week after fertilisation. Abortions according to sub 2 are not stating such a time limit, but the following of the consultation procedure together with a three day reflection period are required. Criminal indication abortions entail a causal link between the criminal act and the unwanted pregnancy. Moreover, there is a time limit set at 12 weeks. One shall notice that abortions during the second trimester, not based on a medical indication, can ex Article 218a sub 4 only be free from punishment for the pregnant women doctors can still be punished. Abortions after the first trimester can thus only be based on medical indication models, since this is the only model without time limit. If one is looking at the abortion rate in Germany, one could see that the rate is relatively low, only 110.694 abortions in 2009. According to the rate of foreign women, travelling abroad to Germany, one can state that the percentage is very low. Germany has very strict rules and the only possibility to perform an abortion based on a pure wish of the mother can only be undergone during the first trimester. Comparison
231

Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat), BIJLAGE 2: p. 39-42.

58

If one compares the three above-mentioned countries with each other, one could see that there are several similarities and differences. All countries have Penal Codes mentioning criteria for abortion and all countries have other legislative documents. The degree of importance of each legislative document differs from country to country. In Belgium and Germany, most rules are to be found in the Penal Code and the Netherlands have most of the rules concerned abortion contained in the Wet Afbreking Zwangerschap. Nevertheless, the basis for abortion in each country will always to be found in the Penal Codes. The criteria mentioned in the abortion rules can be categorised into: emergency situation, reflection period, time period and information duty. All those criteria exist in all three countries. Nevertheless, there are differences. For example, the Netherlands and Belgium use a reflection period of five to six days and Germany is only mentioning three days. This is one of many examples discussed in Chapter V of this essay. It needs to be mentioned that Germany and Belgium have more in common with each other than with the Netherlands. The most striking difference between the Netherlands on the one hand and Belgium and Germany on the other hand is the time limit. The Netherlands practices a wider scope for abortion the other two countries. This might be related to the catholic religion, which is highly against any form of abortion. If one analysis the cross border abortions, one will notice that the percentage of such pregnancy determinations is higher in the Netherlands that in the other two countries. This might be related to the time limit and it questions the need for a European wide rule to regulate this time limit and lower the abortion tourism. Europe The European Union is a Union of 27 Member States with different laws and cultures, which are united under one organisation. To legislate, the EU needs the allowance of all those Member States. The Treaty on the Functioning of the EU mentions the topic of public health and according to Article 168 L-TFEU, the European Union would be able to make legislative documents, wouldnt there be sub 5 of that Article. Harmonisation based on public health issues is not justified under Article 168 sub 5 L-TFEU. Another possible legal base would be Article 352 L-TFEU, however, for an adoption of a legislative document under that Article, the approval of all Member States is needed. One shall moreover question whether an adoption of abortion legislation based on Article 352 L-TFEU would jeopardise the criteria mentioned Article 168 L-TFEU. Since Article 168 L-TFEU mentions the impossibility of adopting harmonising abortion legislation, it shall not be possible to adopt such legislation under another Article namely Article 352 L-TFEU. Since not all Member States have legalised abortion, one could state that there is no proper legal base for abortion legislation. Next to the discussion about the legal basis, there are other evaluations on European level. The European Parliaments wants to set up criteria to make a pregnancy determination, when it is legalised, safe. The European Court of Human Rights is moreover discussing the question when the right to life starts. This discussion is needed to give an answer to the question, when an unborn foetus has its own rights to decide about its life. The Court leaves the answer to this question to the margin of appreciation of the contracting parties. Abortion is a difficult, complex and highly discussed topic. Despite the fact that the legal base is missing, the European Parliament is taking steps toward harmonising measures 59

concerning health criteria for abortions. The future will decide about the possibilities of the EU to harmonise abortion rules. Reflections Since it seems impossible to harmonise abortion rules on European level, one shall take a closer look at the possibilities to create similar rules and set comparable criteria concerning the environment in which an abortion would take place. If there are good standards for clinics and hospitals performing abortions e.g. hygienic and clean operating tables, the chance of unsafe abortions decreases. Moreover, an improvement of preventive health care measures will result in the reduction of unwanted pregnancies and thus in a fall of the abortion rate in several cases. One shall not forget to mention the intentions of several European Authorities to legalise abortion and to create criteria to diminish the chance of unsafe pregnancy determinations. The European Parliament as well as the Council of Europe have already expressed their intention to legalise abortion in all Member States, however it will always be mentioned that abortion shall not be used as family planning method. The most important step towards an improvement of the health care in all Member States is the proposal for a Directive of the European Parliament on the application of patients rights in cross-border healthcare. If this proposal would enter into force, it could lead to a reduction of unsafe abortions. It is clear that the topic of abortion has undergone an extensive evolution. The taboo subject of the last century has evolved into a highly discussed point of interest of the citizens, the Member States of the European Union and the European Union Authorities themselves. One cannot conclude that the European Union will legalise the topic of abortion and create an overall abortion rule within e.g. 5 years. One can conclude that the topic will further be discussed and never be a taboo subject again.

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Closing Remarks
After several months of hard work, this Bachelor essay came to an end and I have to admit that I am proud of it. It deserves mentioning that, without the critical and detailed view of Dr. R. ten Hoopen, this essay would not have been as it is now. Hereby, I would like to say a word of thanks to Dr. R. ten Hoopen. I would also add a thankful remark to my nearest friends and family, who gave me the possibility and time to write this essay. They have been a helpful additional spell- checker and gave lots of mental support. I would also like to point out that writing this essay ensured me of my preference for health law and human rights. This is why I chose to do my master in private law with elective courses in human rights.

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References
1 Literature
Alphabetically

Berer 2004 Marge Berer, Making Abortions Safe: A Matter of Good Public Health Policy and Practice, Belinda Bennet 2004, Burlington: Ashgate Publishing Company, 2004. Chalmers 2008 D. Chalmers e.o., European Union Law, Cambridge: Cambridge University Press, 2008. De Nauw 2005 A. De Nauw, Inleiding tot het Bijzonder Strafrecht, Mechelen: Kluwer, 2005. Dettmeyer 2006 R. Dettmeyer, Medizin & Recht, Heidelberg: Springer Verlag, 2006. Engberts 2009 D. P. Engberts, Gezondheidsrecht, Houten: Bohn Stafleu van Loghum, 2009. Esser 2005 Abin Eser, Abortion and the Law, The Hague: Asser Press, 2005. Fairhurst 2010 J. Fairhurst, Law of the European Union, Essex: Pearson Education Limited, 2010. Filip 2005 Sonja Filip, Ein Recht auf Leben? Norber Hoersters Position in Bezug auf die derzeitige Rechtslage des Schwangerschaftsabbruchs, Norderstedt: GRIN Verlag, 2005. Finnis 2004 John Finnis, The Rights and Wrongs of Abortion: A reply to Judith Thomson, Belinda Bennet 2004, Burlington: Ashgate Publishing Company, 2004. Gindulis 2003 E. Gindulis, Der Konflikt um die Abtreibung, Wiesbaden: Westdeutscher Verlag, 2003. Gropp 1981 W. Gropp, Die rechtliche Einordnung der Straffreiheit zu 218 StGB, Lbingen: Gulde-Druck GmbH, 1981.

62

Jones 2006 R. E. Jones, Human Reproductive Biology, London: Elsevier Inc., 2006. Leenen 2007 H. J. J. Leenen, J.K.M. Gevers, en J. Legemaate, Handboek Gezondheidsrecht Deel 1 Rechten van Mensen in de Gezondheidszorg, Boom Juridische Uitgevers, 2007. Macura a.o. 2005 M. Macura a.o., The New Democratic Regime - Chapter 12: Progress in Policy- Making in Population and Reproductive Health Issues by J. F. Maas, New York: United Nations, 2005. Madea 2003 Burkhard Madea, Praxis Rechtsmedizin, Heidelberg: Springer Medizin Verlag, 2003. Miller 2004 Peta-Gaye Miller, Member State Sovereignty and Womens Reproductive Rights: The European Unions Response, Belinda Bennet 2004, Burlington: Ashgate Publishing Company, 2004. Schnaps 2008 Klaus-Peter Schaps, Algemeinmedizin, Ansthesie und Intensivmedizin, Arbeits- und Sozialmedizin, Rechtsmedizin, Heidelberg: Springer Medizin Verlag, 2008, p. 161-163. Rhonheimer 2004 Martin Rhonheimer, Abtreibung und Lebensschutz, Padaborn: Schningh, 2004. Schnke e.a. 2006 A. Schnke, H. Schrder, A. Eser, Strafgesetzbuch Kommentar, Mnchen: Verlag C. H. Beck, 2006 (27. Auflage). Sroka 2009 S. Sroka, De Belgische Abortuswet, Brussel: RoSa vzw, 2009. Turrentine 1994 J. E. Turrentine, Surgical Transcription in Obstetrics and Gynaecology, Carnforth: Parthenon Publishing Group, 1994. Vansweevelt 2007 T. Vansweevelt, Rechtspraak- en Wetgevingsbundel Gezondheidsrecht, Mechelen: Wolters Kluwer Belgium nv, 2007. Visser e.a 2005 M. R. M. Visser e.a., Evalutatie Wet Afbreking Zwangerschap, Den Haag: ZonMW, 2005.

63

Wijsen 2007 Cecile Wijsen, Abortus in Nederland 2001-2005, Delft: Eburon, 2007. Zller a.o 2008 M. A. Zller, Strafrecht Besonderes Teil II Delikte gegen Rechtsgter der Person und der Allgemeinheit, Berlin: Berliner Wissenschafts-Verlag, 2008.

64

2 2.1 2.2 2.3 2.4

Articles The Netherlands R. du Pr, Woman on Waves vreest vervolging, De Volkskrant, 26 July 2010 (<www.volkskrant.nl>). Belgium Author unknown, Belgium: Commoner for a Day of Two, Time Magazine, 16 april 1990 (<www.time.com>). Burckhardt, Mars voor het leven 2010 te Brussel, 24 June 2010 (<www.28march2010.be>). Germany Author unknown, Abtreibung: Sondergesetze in Bayern, Deutsches rzteblatt 1996, 93(33) (<www.aerzteblatt.de>). G. Klinkhammer, Reform des Schwangerschaftskonfliktgesetzes: Mehr Beratung, Deutsches rzteblatt 2009, 106(47) (<www.aerzteblatt.de>). M. Rittgerott, Sptabtreibung: "Es war doch schon ein Mensch", Stern.de, 26. Oktober 2008 (<www.stern.de>). Europe Author unknown, Europarats-Ausschuss will Regeln fr Gewissensgrnde bei rzten, Deutsches rzteblatt, 22 June 2010 (<www.aerzteblatt.de>). Author unkown, Raad van Europa voor Vrije Abortus, Reformatorisch Dagblad, 19 April 2008 (<www.refdag.nl>). B. C. van Beers, De Mysterieuze Status van het Embryo, NJB, 2005, 13, p. 678- 685. J. Pichon, Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights in the Judgment Vo v. France, German Law Journal, Vol.07 No.04.

Alphabetically per country

65

3 3.1

Law Netherlands Algemene Wet Bijzondere Ziektekosten Wet van 14 december 1967, (Stb. 1967, 617 rectificatie in Stcrt. 2010, 20455) houdende algemene verzekering bijzondere ziektekosten , zoals deze wet laatstelijk is gewijzigd bij de wet van 25 maart 2009 (Stb. 2009, 108 rectificatie in Stcrt. 2010, 20455). Regeling Subsidies AWBZ Regeling van de Staatssecretaris van Volksgezondheid, Welzijn en Sport van 5 december 2005, nr. Z/VU-2635240, houdende regels voor subsidies ten laste van de AWBZ en intrekking van de Regeling subsidies AWBZ en Ziekenfondswet. Wet Afbreking Zwangerschap Wet van 1 mei 1981 (Stb. 1981, 257) houdende regelen met betrekking tot het afbreken van zwangerschap, zoals deze wet laatstelijk is gewijzigd bij de wet van 27 september 2001 (Stb. 2001, 481). Wetboek van Strafrecht Wet van 3 maart 1881 (Stb. 1881, 35) zoals laatstelijk gewijzigd bij wet van 1 april 2008 (Stb. 2008, 148). Zorgverzekeringswet Wet van 16 juni 2005, Stb. 2005, 358, houdende regeling van een sociale verzekering voor geneeskundige zorg ten behoeve van de gehele bevolking (Zorgverzekeringswet). Inwerkingtreding: 1 januari 2006 (Stb. 2005, 649). Belgium Strafwetboek Wet van 8 Juni 1867 Strafwetboek (B. S., 9 juni 1867). Wet betreffende zwangerschapsafbreking Wet van 3 april 1990 betreffende de zwangerschapsafbreking, tot wijziging van de artikelen 348, 350, 351 en 352 van het Strafwetboek en tot opheffing van artikel 353 van hetzelfde Wetboek (B. S., 5 april 1980). Wet oprichting Nationale Evaluatiecommissie De Wet van 13 augustus 1990 houdende oprichting van de Nationale Evaluatiecommissie inzake de toepassing van de wetgeving betreffende de zwangerschapsafbreking (3 april 1990). Germany Bayerisches Schwangerenberatungsgesetz (BaySchwBerG) Gesetz ber die Schwangerenberatung (Bayerisches Schwangerenberatungsgesetz - BaySchwBerG) vom 9. August 1996, 2170-2-A, GVBl 1996, S. 320.

Alphabetically per country

3.2

3.3

66

Bayerisches Schwangerenhilfeergnzungsgesetz (BaySchwHEG) Gesetz ber ergnzende Regelungen zum Schwangerschaftskonfliktgesetz und zur Ausfhrung des Gesetzes zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen (Bayerisches Schwangerenhilfeergnzungsgesetz - BaySchwHEG) vom 9. August 1996, 2170-8-UG, GVBI 1996, S. 328. Gesetz ber den Mutter- und Kinderschutz und die Rechte der Frau Gesetz ber den Mutter- und Kinderschutz und die Rechte der Frau vom 27. September 1950, Gesetzblatt der Deutschen Demokratischen Republik 1950 S. 1037. Gesetz ber die Unterbrechung der Schwangerschaft Gesetz ber die Unterbrechung der Schwangerschaft vom 9. Mrz 1972, Gesetzblatt der Deutschen Demokratischen Republik 1972 Teil I. S. 89. Gesetz zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen (SchHG) Gesetz zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen vom 21. August 1995 (BGBl. I S. 1050, 1054), das zuletzt durch Artikel 98 der Verordnung vom 31. Oktober 2006 (BGBl. I S. 2407) gendert worden ist. Schwangeren- und Familienhilfenderungsgesetz (SFHndG) Schwangeren- und Familienhilfenderungsgesetz vom 21. August 1995, Bundesgesetzblatt, Jahrgang 1995, Teil I. Schwangerschaftkonfliktgesets (SchKG) Schwangerschaftskonfliktgesetz vom 27. Juli 1992 (BGBl. I S. 1398), das zuletzt durch das Gesetz vom 26. August 2009 (BGBl. I S. 2990) gendert worden ist. Strafgesetzbuch (StGB) Strafgesetzbuch, in der Fassung der Bekanntmachung vom 13.11.1998 (BGBl. I S. 3322), zuletzt gendert durch Gesetz vom 02.10.2009 (BGBl. I S. 3214) m.W.v. 22.10.2009. Europe Charter of Fundamental Rights of the European Union Charter of Fundamental Rights of the European Union, O.J. 18.12.2000 C364/1. Convention on Human Rights and Biomedicine Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo 4.IV.1997, European Treaty Series no. 164.

3.4

67

Convention on the Rights of the Child Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49. Consolidated Version of the Treaty on the Functioning of the European Union Consolidated Version of the Treaty on the Functioning of the European Union, O.J. 30.3.2010 C 83/47.

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4 4.1 4.2 4.3

Case Law The Netherlands HR 29 May 1990, NJ 1991, 217. HR 18 maart 2005, NJ 2006, 606. Rechtbank s Gravenhage, 31 January 2008, LJN: BC3182. Belgium Cass. 3 december 1941, Arr.Cass. 1941, 247; Pas. 1941, I, 441. Germany BVerfGE 88, 203 vom 28. Mai 1993, Absatz-Nr. 184. BVerfG, 1 BvR 2306/96 vom 27.10.1998, Absatz-Nr. (1 - 368).

Sorted by date

4.4 European Union European Commission and Court of Human Rights European Commission on Human Rights, X. v. the United Kingdom, Judgement of 12 October 1978, no. 7215/75 (<www.echr.coe.int>). European Commission on Human Rights, H. v. Norway, Decision of 19 May 1992, Decision and Reports vol. 73, 155, 167 (<www.echr.coe.int>). European Court of Human Rights, Vo v France, Judgment of 8 July 2004, no. 53924/00 (<www.echr.coe.int>).

European Court of Human Rights, Evans v. United Kingdom, Judgment of 7 March 2006, No. 6339/05 (<www.echr.coe.int>). European Court of Justice 69 Case 68/86, United Kingdom of Great Britain and Northern Ireland v Council of the European Communities [1988] ECR 855 (<www.unhcr.org>).

Websites

For more specific data of each site, see footnotes. Sorted alphabetically per country

5.1 The Netherlands Centra voor Anticonceptie, Seksualiteit & Abortus Centraal Bureau voor Statistiek Centrum voor Seksuele Gezondheid De Rijksoverheid. Voor Nederland

www.casa.nl www.cbs.nl www.acsg.nl www.rijksoverheid.nl

Late zwangerschapsafbreking en levensbeindiging bij www.lza-lp.nl pasgeborenen Ministerie van Justitie Ministerie voor Volksgezondheid Welzijn en Sport Nederlands Genootschap voor Abortussen Nederlandse Zorg Autoriteit Rutger Nisso Groep Women on Waves 5.2 Belgium RoSa Documentatiecentrum Dr. Willy PEERS Centrum F.O.D. Economie, K.M.O., Middenstand en Economie Jongeren Info Life vzw Luna Unie van Nederlandstalige Abortuscentra Mars voor het leven 2010 Rijksinstituut voor Ziekte en Invaliditeits Verzekering www.justitie.nl www.minvws.nl www.ngva.net www.nza.nl www.rutgernissogroep.nl www.womenonwaves.org

www.rosadoc.be www.drwpc.be www.economie.fgov.be www.jongereninfolife.be www.abortus.be www.28march2010.be www.riziv.fgov.be

5.3 Germany Bundesministerium fr Familien, Senioren, Frauen und www.bmfsfj.de Jugend Bundesregierung Das Deutschland Portal Deutscher Bundestag Deutsches rzteblatt Deutsches Statistisches Bundesamt www.bundesregierung.de www.deutschland.de www.bundestag.de www.aerzteblatt.de www.destatis.de

ProFamilia (Deutsche Gesellschaft fr Familienplanung, Sexualpdagogik und Sexualberatung www.profamilia.de e.V. Bundesverband) Stern.de 70 www.stern.de

5.4 Europe European Court of Human Rights European Parliament The UN Refugee Agency United Nations Council of Europe

www.echr.coe.int www.europarl.eu.int www.unhcr.org www.un.org www.coe.int

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Other publications Abortus in Nederland Author unknown, Abortus in Nederland, 18 mei 2009, last visited 24 June 2010 (<www.historiek.net>). Belgische Kamer van Volksvertegenwoordigers Belgische Kamer van Volksvertegenwoordigers, Wetsvoorstel tot wijziging van het Burgerlijk Wetboek wat betreft het verlenen van rechtspersoonlijkheid aan het ongeboren kind, 13 November 2007, DOC 52 0363/001. Belgische Kamer van Volksvertegenwoordigers en Senaat Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat). Belgische Senaat Belgische Senaat, Voorstellen van de wet betreffende de zwangerschapsafbreking, Zitting 1988-1989, B.Z. 1988, nr. 247/2. BMFSFJ, Schwangerschaftsberatung 218 2010 Bundesministerium fr Familien, Senioren, Frauen und Jugend, Schwangerschaftsberatung 218, Berlin: BMFSFJ, 2010. BMFSFJ, Bekanntmachung Betrge SchwHG Bundesministerium fr Familie, Senioren, Frauen und Jungend, Bekanntmachung ber die nach 1 Absatz 2 in Verbindung mit 6 des Gesetzes zur Hilfe fr Frauen bei Schwangerschaftsabbrchen in besonderen Fllen ab dem 1. Juli 2009 geltenden Betrge, 15. Juni 2009, Bundesanzeiger Nr. 92, p. 2217. Committee on Womens Rights and Equal Opportunities Committee on Womens Rights and Equal Opportunities Anne E.M. Van Lancker, Draft report on sexual and reproductive health and rights, 2 June 2002, number 2001/2128(INI), PE 305.485 (<www.europarl.eu.int>). Resolution of the European parliament on Sexual and Reproductive health and Rights European Parliament, Resolution of the European parliament on Sexual and Reproductive health and Rights, number 2001/2128(INI)), O.J. 12.11.2003 C271 E/369 (<www.europarl.eu.int>), paragraph 8-13. Proposal for a Directive on the application of patients rights in cross- border healthcare European Parliament and Council, Proposal for a Directive on the application of patients rights in cross-border healthcare, Brussels 2nd June 2008, COM(2008)414 final. 72

Alphabetically

Hgele 2005 M. Hgele, Sexual and Reproductive Health and Rights in the European Union, EntreNous The European Magazine for Sexual and Reproductive Health Denmark: Reproductive Health and Research Programme WHO Regional Office for Europe, No. 59-2005, p. 26-28. Kruijer e.a. 2009 H. Kruijer e.a., Rapport Landelijke Abortus Registratie 2008, Utrecht: Rutgers Nisso Group, 2009. Parliamentary Assembly Parliamentary Assembly, Access to Safe and Legal Abortion, Doc. 11537 rev., 8th of April 2008 (<www.assembly.coe.int>). ProFamilia, Fakten und Hintergrnde (1) 2008 ProFamilia Deutsche Gesellschaft fr Familienplanung, Fakten und Hintergrnde Judengschwangerschaften in Deutschland I, Frankfurt am Main, Juni 2008. ProFamilia, Fakten und Hintergrnde (2) 2008 ProFamilia Deutsche Gesellschaft fr Familienplanung, Fakten und Hintergrnde Judengschwangerschaften in Deutschland II, Frankfurt am Main, Juni 2008. ProFamilia, Medical Abortion 2001 ProFamilia Deutsche Gesellschaft fr Familienplanung, Medical Abortion For Womans Health and Free Choice, Frankfurt am Main, 2001. ProFamillia, Schwangerschaftsabbruch 1991 ProFamilia Deutsche Gesellschaft fr Familienplanung, Schwangerschaftsabbruch, 1991. ProFamilia, Schwangerschaftsabbruch mit Mifepriston und Misopostal 2008 ProFamilia Deutsche Gesellschaft fr Familienplanung, Schwangerschaftsabbruch mit Mifepriston und Misoprostol, Frankfurt am Main, 2008. ProFamilia, Standpunkt Schwangerschaftsabbruch 2006 ProFamilia Deutsche Gesellschaft fr Familienplanung, Standpunkt Schwangerschaftabbruch, Frankfurt am Main, 2006. ProFamilia, Schwangerschaftsabbruch mit Medizinischer Indikation 2010 ProFamilia, Schwangerschaftsabbruch mit Medizinischer Indikation nderungen im Schwangerschaftskonfliktgesetz, Frankfurt am Main, 2010. R. Trips-Hebert 2008 R. Trips-Hebert, Sptabtreibung und Strafrecht, Deutscher Bundestag Wissenschaftliche Dienste, nr. 84/08, 2008.

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Sensoa 2009 Sensoa, Feiten & Cijfers: Abotus in Belgi, Antwerpen: Sensoa vzw, Oktober 2009. Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010 Statistisches Bundesamt, Gesundheit Schwangerschaftsabbrche 2009, Wiesbaden: Statistisches Bundesamt, Fachserie 12 Reihe 3, 2010. United Nations United Nations, Abortion Policies: A Global Review, New York: United Nations Population Division, 2002. United Nations Information Population Network I United Nations Information Population Network, Key actions for the further implementation of the Program of Action of the International Conference on Population and Development, New York: United Nations (A/S-21/5/Add.1). United Nations Information Population Network II United Nations Information Population Network, Report of the International Conference on Population and Development, Cairo, 5-13 September 1994 (<www.un.org>). World Health Organisation WHO, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems, Geneva: WHO 2003.

74

Figures Figure 1 Wijsen 2007. Figure 2 ProFamilia, Schwangerschaftsabbruch mit Mifepriston und Misopostal 2008, p. 6. Figure 3 Toronto Right to Life Association (<www.righttolifetoronto.org>), 3 March 2010. Figure 4 Toronto Right to Life Association (<www.righttolifetoronto.org>), 3 March 2010. Figure 5 Dutch Penal Code and the Wafz. Figure 6 Kruijer e.a. 2009, p. 33-35. Figure 7 Women on Waves (<www.womenonwaves.org>), 15 June 2010. Figure 8 - Belgian Penal Code. - Wet Betreffende de Zwangerschapsafbreking. Figure 9 Belgische Kamer van Volksvertegenwoordigers en Senaat, Nationale Commissie voor de Evaluatie van de Wet van 3 April 1990 Betreffende de Zwangerschapsafbreking (wet van 13 augustus 1990) Verslag ten Behoeve van het Parlement, Augustus 2008, nr. 1745/001 (Kamer) 4-1137/1 (Senaat), p. 5. Figure 10 - Strafgesetzbuch, 218 until 219. - Schwangerschaftskonfliktgesetz. - Schwangeren- und Familienhilfenderungsgesetz. Figure 11 Statistisches Bundesamt (Fachserie 12 Reihe 3) 2010, tabelle 9. Figure 12 - Wetboek van Strafrecht. - Strafgesetzbuch. - Strafwetboek.

75

Figure 13 - Chapter II. - Chapter III. - Chapter IV. Figure 14 - Chapter II, sub 2.5.1. - Chapter III, sub 2.5.1. - Chapter IV, sub 2.5.1. - Centraal Bureau voor Statistiek, Bevolking; kerncijfers naar diverse kenmerken, 19 July 2010 (<www.cbs.nl>). - F.O.D. Economie, K.M.O., Middenstand en Economie, Structuur van de bevolking volgens leeftijd en geslacht: geslachtsverhouding, 19 July 2010 (<www.economie.fgov.be>). - Statistisches Bundesamt Deutschland, Bevlkerung, 19 July 2010 (<www.destatis.de>). Figure 15 Graphical overview based on information of Chapter II, III and IV sub 2.5.3.

76