This document discusses and compares the legal approaches to abortion and the right to life in Germany and England. In Germany, abortion is legal under certain circumstances like risk to the woman's life or health, rape, or fetal impairment. However, there are still debates around issues like when a fetus gains human rights and moral status. In England, abortion is legal up to 24 weeks, though later abortions are allowed in cases of fetal disability. The document examines philosophical debates around the concept of rights and whether a fetus qualifies as a human being or person with moral worth. It also outlines some of the historical changes to abortion laws in both countries.

1. The focus of legal concepts has been the attraction of “right”. This has also created another
focus by philosophers about its moral and legal aspect. However for one to talk about right
could immediately raises a major question as to what right is, and what rights people actually
have or should have? These distinctions could create several difficult philosophical problems
if one seeks to understand the nature of right.1
This essay however will evaluate what the German and the English Law considers about the
right to life with regards to abortion. In doing this the implication of such consideration will
be also analysis with reference to its legal and moral concepts. Robinson (1997) had claimed
that “Abortion can be defined as purposeful interruption of the process of development at
which ever particular time after conception to birth. In medical terms it can be referred to as
termination of a pregnancy before a normal development of a foetus is able to survive on its
own.2
Such philosophical issues could be whether there is any conceptual connection between rights
and morals kinds or what sought of right the legal system will create or recognise and so on.
If we accept the above to be true, the question one should be asking is whether all legal
systems have the concept of right? For many writers there have been developed ideas that
right should be analysed principally as duty, permission and power or in a more basic notion.
This means that not all rights could be regarded as important, because such importance could
vary based on the strength of the grounds for that duty, permission or power. White (1984),
disagrees with the above concept of right, claiming that the task is impossible because the
concept of a right is a basic as any of the others, like duty, liberty, power which could be
analysed in to it. On the other hand he agrees that right could in part be analysed by reference
1
Raymond Wack, Jurisprudence( 5th edition London: Blackstone press limited 1999.)p245
2
Alicemorrison, Advantages and Disadvantages of Abortion, June 29, 2010
http://articlesupport.com/2010/06/29/advantages-and-disadvantages-of-abortion/ (accessed on 14 May 2011)
1

2. to such concepts. Similarly, Mill (1969 [1861] ) have claimed that “when we call anything a
person‟s right, we mean that he has a valid claim on society to protect him in the possession
of it, either by the force of law or by that of education and opinion.” This could mean
protecting the fundamentals human well-being, and the sub set of those things which a person
ought to have.3 On the contrary if one seeks an explication of „moral right‟, one has to ask
what kind of explication one could be looking for. H.J McCloskey suggests that right is
simply as entitlements. This could be a mistake. As some philosophers claim, the way should
be open to think that a person having a right can be a reason why others should be morally
obligated to do something.4 Therefore it could be noted that as well as philosophers differ
about what rights one could have, so too they differ on what is being said when one is told
that someone has a right to something. For example, “if we think that A‟s interest in not
drowning is sufficiently important to justify holding others to be under a duty a rescue her
when she gets into difficulties, and if we think that the same is true of B‟s interest in not
drowning, then we will be faced with a conflict of rights whenever both are in difficulties...”
In such a case it could not be so awful from a moral point of view since the means to rescue
both could not be practicable5 As already stated above the focus of this essay could be the
question about the Right to Life with regards to abortion. Although the Right to Life is
absolute, it does not apply in some situations and in some jurisdiction in Europe, it does not
also include right to take your own life as in England. In previous cases the European court of
Human Rights has judged that a foetus does not have human rights until when it is born.
However, due to different religious tradition and opinion the court has recognised the
3
Campbell, Kenneth, "Legal Rights", The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), pp1,2,3
Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2011/entries/legal-rights/ . (accessed on 8 May 2011)
4
Richard B. Brandt, ‘The Concept of a Moral Right and its Function‟ The journal of Philosophy Vol. 80. No1.
January 1983 p21 http://www.jstor.org/stable/2026285 (accessed on 8 May 2011)
5
Jeremy Waldron, „Right in Conflict‟ Chicago Journals, Ethics Vol.99, No 3 April 1989 p503-6
http://www.jstor.org/stable/2380863 (accessed on 8 May 2011)
2

3. diversity across member‟s state about these views.6 Over the centuries the taking of human
life has been strongly condemned by most world religions and philosophisers. A number of
treaties have been created by the international human rights law as sacrosanct to protect
individuals from being arbitrarily killed. However the Right to Life as it might look is not
inviolable. There are a number of restrictions as already stated to which the international
human rights how will not raise any objection. For example the death penalty which is used
as a punishment for crimes committed in some jurisdiction.7 On the contrary, Aristotle had
written that “…when couples have children in excess, let abortion be procured before sense
and life have begun; what may or may not be lawfully done in these cases depends on the
question of life and sensation.” In most jurisdictions in many western histories abortion was
not criminal if it were carried out before the foetus moved in the womb; until this movement
is completed many people have regarded the foetus as part of the matter which could pose no
greater ethical problem if it were removed.8 If one makes such conclusion that morally
abortion is not wrong, does that mean its right to have an abortion? Again if ones unthinking
assumes that the above question is correct then one could also ask oneself what gives a being
the right to life? Considering such question, can one also raise another question whether a
foetus is a human being? Perhaps one can only demonstrate a given answer by considering so
many factors. For example what the „pro-life‟ and pro-choice supporters think; religion could
6
Equality and Human Rights Commission, Right to Life, Case summaries taken from Human rights, human
lives, Department for Constitutional Affairs, 2006. http://www.equalityhumanrights.com/human-rights/what-
are-human-rights/the-human-rights-act/right-to-life/ (accessed on 9 April 2011)
7
Human Rights Education Associates, Right to Life http://www.hrea.org/index.php?doc_id=427 (accessed on
10 May 2011)
8
Ethics guide BBCNews, Historical attitudes to abortion
http://www.bbc.co.uk/ethics/abortion/legal/history_1.shtml (accessed on 9 April 2011)
3

4. also play a role and a more standardise scientific evidence.9 Undeniably, one could consider
the foetus as a potential person on the other hand this does not justify the moral value of that
potential being at particular moment in its development. However Warren 1985, p.94; and
Birtish Control Trust 1994 have argued that a person in a coma or under anaesthetic cannot
feel pain, but that does not eradicate their moral right for them to be killed.10 In Germany
abortion was defined in its criminal code S218 as a felony punishment that carries five years
imprisonment. This issue became the focus on political agenda in the late nineteenth century
as socialists, feminists and Liberals try to put birth and population control on their main
priority. The „Bund group was one of the first to call for the elimination of S218. Although
many attempts to reach this goal failed, the Nazi abortion law sharply differentiated between
worthy and unworthy life, “forbidding abortion on the former but demanding it in the latter
case.”11 In recent time, abortion in Germany can take place on request in certain
circumstances, like to save the life of the woman, preserve physical and mental health, for
rape, fatal impairment economic or social reasons and incest. On the other hand these issues
can be only allowed on medical and criminal grounds, and on demand. However this essay
will not go into describing these grounds but what should be noted is that a termination lies
entirely with the pregnant woman. Nevertheless consideration can be made with regards to
her age whether it is below 18 years, as to whether the parents should decide for her. She
must also take a gynaecological examination to identify foetal abnormalities and counselling.
In addition, since 2008 a non-surgical method has been approved (the prescription of abortion
9
Ethics guide BBCNews, Introduction to the abortion debate
http://www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml (accessed on 9 April 2011)
10
Janet Hadley, „Abortion’ Between Freedom and Necessity,( London: VIRAGO 1996) p.82-83
11
(Myra et al, „communication, society and politics.‟ Shaping Abortion Discourse. Democracy and the public
sphere in Germany and the United States, New York: Cambridge University press 2002) pp26-27
4

5. pill, RU486)12 Although there have been measures put in place to carry out abortion in
Germany, there are still some amount of people that still think it‟s not appropriate. For
example in 1999 the Regional Court in Germany (Landgericht) convicted two applicants of
defamation to the detriment of a well-known abortionist, Dr. Adreas Feudemann and imposed
fine on them. They appealed against the decision claiming that the convictions violated their
right to freedom of expression and the length of proceedings was in breach of the „reasonable
time‟ requirement. The (ECtHR) European Court of Human Rights found that Article 6 was
violated but dismissed the violation of their “applicants” freedom of expression. “The impact
on expression of opinion has on another person‟s personality rights cannot be detached from
the historical and social context in which statement was made....The impugned statement
constituted a very serious violation of the physician‟s personality right. The court considers
that domestic court struck a fair balance between the competing interests involve.13 Unlike
Germany, the U.K. is different in its policy about abortion .Although there have been some
misperceptions and legal permissibility about abortion in the U.K., many people have taken
this view incorrectly that abortion is prevalent and that the law is very Liberal in caparison to
other countries.14 For many years the English Law had considered abortion was a crime after
12
German Family Planning, Sex Education and Sexual Counselling and Advice Service, Federal Centre for
Health Education (Bundeszentrale fur gesundheitliche Aufklarung, BZgA) family planning website, Termination
of Pregnancy and Abortion in Germany http://berlin.angloinfo.com/countries/germany/abortion.asp (accessed
on 9 April 2011)
13
J.C Von Krempach, 2011 J. D European Human Right Court: Germany is allowed to prohibit Comparison
between Abortion and the Holocaust, International Law Policy and Institution
http://www.turtlebayandbeyond.org/2011/abortion/european-human-rights-court-germany-is-allowed-to-
prohibit-comparison-between-abortion-and-the-holocaust/ (accessed on 8 May 2011)
14
British Medical Association, (2005) Abortion time limits
http://www.bma.org.uk/ethics/reproduction_genetics/AbortionTimeLimits.jsp?page=9 (accessed on 9 April
2011)
5

6. quickening. However the extent to the gravity of that crime was different at different times in
history. In the 1800‟s abortion after quickening was a crime that could lead to death penalty.
But after 1837 the significant of quickening was abolished and thus no death penalty. In the
1920‟s it could not be considered a crime if it were done to preserve the life of the mother.
Nevertheless these changes brought some difficulties in the anti-abortion Laws. What perhaps
one might suggest is that the changes were meant to protect women and not to protect the;
life of the foetus, for example in the case of R V Bourne, the judge Mr Justice Macnaghten
concluded that “… if the doctor is of the opinion, on reasonable grounds and with adequate
knowledge, that the probable consequence of the continuance of the pregnancy will be to
make the woman a physical or mental wrek, the jury are entitled to take the view that the
doctor…. Operating for the purpose of the mother.15 In retrospect there has been much
criticism about abortion worldwide. Many are critical about the health risk involved. As time
goes by abortion becomes more traumatic and riskier issue for those interested in it. For pro-
choice campaigners, they believe it is harder to defend late abortion then early ones. But anti-
abortion campaigners view abortions as misleading the public and believe that such
undertaken are insouciant. Scientists and medical conflict about the dangers of abortion have
been as argumentative as the political and moral controversy.16 In England abortion is not
allowed beyond 24 weeks. However if there is a serious disability involved then it could be
carried out up to 39 weeks. Nevertheless a scientist invited to the commons “professor Sunny
Anond from the University of Arkansas” to present an evidence said it is very likely that
foetuses aborted beyond the stage of pregnancy could feel „excruciating pain‟. On the other
hand a conservative M.P and a former nurse disagrees that there is no such based scientific
15
Ethics guide BBCNews, see note on 8.
16
Janet Hadley, (1996), see note on 10.
6

7. evidence.17 Also Paul Tully the general secretary of the society for the protection of unborn
children have argued that drafted guidelines from the Royal College of Obstetrics and
Gynaecologist‟s recommendation about abortion were very badly drafted. He also added that
there was a down play of the physical and physiological side effects of abortion. Tully also
noted that the world best record maternal health is Ireland because of its restricted on
abortion, as well as Chile which has the lowest maternal mortality rate.18 Also Professor
Vivette Glover from Queen Charlottes and Chelsea hospital in London says the foetuses over
17 weeks old may feel pain and that because of such possibility one “should give the foetus
the benefit of the doubt.” However she agrees that it was possible that foetuses could not feel
pain as people do after birth, but “it was unlikely for them to produce the feelings of anxiety
common in people.19 On the other hand one can suggest that German Law view towards the
realities of abortion is honest. As stated by Donald P. Kommers, German Law do not pretend
that “the... foetus is not in some sense human life... that all doctors working in abortion
clinics have the best interest of their patients at heart... that all women who choose to abort
their unborn children are doing so because they have made responsible choice against the
backdrop of all available alternatives.” What one should note however is that the court
performance on the complexity of these views are impressive especially when confronted by
a pregnant woman in distress. For example the question in Roe was whether the foetus is a
person? The personhood of the foetus was not the issue in the German court. However the
court refused to decide, whether the unborn child was a bearer of rights. Thus the Court
17
Daniel Martin, (2008) Abortion time limit should be reduced as foetuses feel pain before 24 weeks, MPs told
http://www.dailymail.co.uk/health/article-510975/Abortion-time-limit-reduced-foetuses-feel-pain-24-weeks-
MPs-told.html (accessed on 8 May 2011)
18
EWTNNews,(2011) Criticism heaped on UK draft guidelines promoting abortion as safer than childbirth:
http://www.ewtnnews.com/catholic-news/World.php?id=2732#ixzz1MWlkCo7b ( accessed on 13 May 2011)
19
Vivette Glover, (2000) 'Abortion causes foetal pain' http://news.bbc.co.uk/1/hi/health/900848.stm (accessed
on 14 May 2011)
7

8. characterised that life as a “legal value” of the utmost importance which should merit state
protection. By contrast the German constitutional law can be said to have strong
communitarian orientation, human solidarity, public virtue to liberty and the wholeness of life.
For example in the case of BVERFGE 7 at 15-16 (1954) the court held that “The image of
man in the basic law is not that of an isolated sovereign individual; rather…a person‟s
dependence on commitment to community, without infringing upon a person‟s individual
value20 Finally one could suggest that the issues surrounding abortion need to be
reformulated. These are due to some major issues being systematically ignored. For many,
abortion is like equal pay that people might want and this could be misleading. The right to
control one‟s body is a fundamental right of privacy and thus if exercise is a requisite for
functioning as a person. Perhaps one could therefore say that those who are interested in
ensuring woman‟s right to bring about safe and early abortion have failed to achieve such
goal and thus those provided information could be regarded as inaccurate. As Duff explicitly
extended these misgivings, saying, that most women who have spontaneously aborted have
been left puzzle and angry by the paternalism of physicians who dismiss their loss as “a
matter of little consequence.”21
20
Donald P.Kommers, The Constitutional Law of Abortion in Germany: Should Americans pay Attention, 10 J.
Contempt. Health L. & Poly 1 1994)pp 31,30,29
http://heinonline.org/HOL/Page?handle=hein.journals/jchlp10&div=5&g_sent=1&collection=journals (accessed
on 14 May 2011)
21
Bondeson et al, Abortion and the Status of the Fetuse (D. Reidel Publishing: Netherlands 1983)pp267,266
8

9. Bibliography
Bondeson et al, Abortion and the Status of the Fetuse (D. Reidel Publishing: Netherlands 1983
Raymond Wack, Jurisprudence( 5th edition London: Blackstone press limited 1999.)
Janet Hadley, „Abortion’ Between Freedom and Necessity,( London: VIRAGO 1996)
(Myra et al, „communication, society and politics.‟ Shaping Abortion Discourse. Democracy and the
public sphere in Germany and the United States, (New York: Cambridge University press 2002)
Donald P.Kommers, The Constitutional Law of Abortion in Germany: Should Americans pay Attention, 10 J.
Contempt. Health L. & Poly 1 1994)pp 31,30,29
http://heinonline.org/HOL/Page?handle=hein.journals/jchlp10&div=5&g_sent=1&collection=journals (accessed
on 14 May 2011)
Vivette Glover, (2000) 'Abortion causes foetal pain' http://news.bbc.co.uk/1/hi/health/900848.stm (accessed on
14 May 2011)
EWTNNews,(2011) Criticism heaped on UK draft guidelines promoting abortion as safer than childbirth:
http://www.ewtnnews.com/catholic-news/World.php?id=2732#ixzz1MWlkCo7b ( accessed on 13 May 2011
Daniel Martin, (2008) Abortion time limit should be reduced as foetuses feel pain before 24 weeks, MPs told
http://www.dailymail.co.uk/health/article-510975/Abortion-time-limit-reduced-foetuses-feel-pain-24-weeks-
MPs-told.html (accessed on 8 May 2011)
British Medical Association, (2005) Abortion time limits
http://www.bma.org.uk/ethics/reproduction_genetics/AbortionTimeLimits.jsp?page=9 (accessed on 9 April
2011)
J.C Von Krempach, 2011 J. D European Human Right Court: Germany is allowed to prohibit Comparison
between Abortion and the Holocaust, International Law Policy and Institution
http://www.turtlebayandbeyond.org/2011/abortion/european-human-rights-court-germany-is-allowed-to-
prohibit-comparison-between-abortion-and-the-holocaust/ (accessed on 8 May 2011)
German Family Planning, Sex Education and Sexual Counselling and Advice Service, Federal Centre for Health
Education (Bundeszentrale fur gesundheitliche Aufklarung, BZgA) family planning website, Termination of
Pregnancy and Abortion in Germany http://berlin.angloinfo.com/countries/germany/abortion.asp (accessed on
9 April 2011)
Ethics guide BBCNews, Introduction to the abortion debate
http://www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml (accessed on 9 April 2011)
Ethics guide BBCNews, Historical attitudes to abortion
http://www.bbc.co.uk/ethics/abortion/legal/history_1.shtml (accessed on 9 April 2011)
9

10. 1
Human Rights Education Associates, Right to Life http://www.hrea.org/index.php?doc_id=427 (accessed on
10 May 2011)
Equality and Human Rights Commission, Right to Life, Case summaries taken from Human rights, human lives,
Department for Constitutional Affairs, 2006. http://www.equalityhumanrights.com/human-rights/what-are-
human-rights/the-human-rights-act/right-to-life/ (accessed on 9 April 2011)
10