Abstract
At first sight, the title of this paper seems rather academic, but when we look more closely, it reveals problems of a highly explosive social and political nature. This is particularly so if we think of permanent contraceptive procedures such as sterilization. Since there was awful abuse of this measure during the German national socialist period, this is still a very touchy problem [1]. Nonetheless, we must concede that contraceptive measures with regard to a mentally handicapped yet still sexually fully active adolescent might become very urgent. In such a case, what should parents be allowed to do and to ask for? What measures should homes or other protective institutions for the mentally handicapped be allowed to take? What limitations are imposed in this respect by contemporary German law? The purpose of this survey is to pursue some of these questions. First, however, it will be necessary to identify certain problems arising within the framework of this topic.
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In this respect, other countries are much better off, since they are able to discuss these problems untouched by the dark shadows of their history: an impressive example is the Working Paper 2.4, Sterilization: implications for mentally retarded and mentally ill persons, by the Law Reform Commission of Canada, 1979.
But not necessarily of such a nature that one could speak of an “abnormal sexual instinct” in the sense of the German Castration Act of 15 August 1969 (Gesetz über die freiwillige Kastration und andere Behandlungsmethoden: BGBl. I 1143). Treatment measures in terms of this Act are not dealt with here. A corresponding application of rules of procedure under this Act to the fields of inquiry to be considered here is impossible [LG Düsseldorf FamRZ 1981, 95; AG Kaiserslautern MDR 1981, 229; see also Henke, Neue Juristische Wochenschrift (1976) Ergänzende Maßnahmen zur Neuregelung des Schwangerschaftsabbruchs — advocating an extensive adoption of the provisions of the Kastrationsgesetz (KastrG), from a legal policy point of view]. Cf also Hanack (1959) Die strafrechtliche Zulässigkeit künstlicher Unfruchtbarmachung, pp 320 ff and note 33
See Wimmer (1976) Ärztliche Sterilisation von Einwilligungsfähigen und Nichteinwilligungsfähigen. Renovatio, p 127
BGHSt (Entscheidungen des Bundesgerichtshofs in Strafsachen: Decisions of the Federal Court in Penal Matters) 20 (1966) 81
For this reason there is at present no real foundation for the repeatedly expressed fear that a so-called “acommodating sterilization” (Gefälligkeitssterilisation) must be seen as contra bonos mores (immoral) in view of section 6 of the professional rules for doctors (Berufsordnung für Ärzte) and could accordingly be punishable under section 226 a of the German Criminal Code. On this subject and for further details see Eser in Eser, Hirsch (eds) (1980) Sterilisation und Schwangerschaftsabbruch, pp 55 ff
For individual references to this now generally recognized view in German theory and practice see Lenckner in Schönke, Schröder (eds) (1982) Kommentar zum StGB, 21st edn, prenotes 39 ff to section 32, and also Eser in Schönke and Schröder, section 223, notes 37 ff
Cf section 2, subsection 1, no 3 KastrG (note 2 above). See further, for example, Hirsch’s view in Leipziger Kommentar zum StGB, 10th edn, 1981, section 226 a, note 41
Lenckner’s term, in Eser and Hirsch (note 5 above), p 188
Cf section 226 b of the 1972 draft of a Fifth Criminal Law Reform Act and section 112, subsection 2 Alternativ-Entwurf (Alternative Draft) (cf note 25 below). See further Hanack (1979) Die strafrechtliche Zulässigkeit künstlicher Unfruchtbarmachung, p 339, and Wimmer (note 3 above), pp 129 ff
This, in particular, is Lenckner’s view (note 8 above)
See Eser in Schönke and Schröder (note 6 above), section 223, note 62 (but also note 38 below). Capacity to consent cannot “automatically” be attributed to persons of full age. To the extent that an attempt may be made to avoid a minor’s possible capacity to consent by reference to the contra bonos mores provision of section 226 a of the German Penal Code — so that a minor’s power to make his own arrangements is disputed either generally or only with regard to sterilization carried out as a favor [cf Lenckner in Eser and Hirsch (note 5 above) p 189] — it must be countered that according to the German Civil Code there is no room for considerations relating to contra bonos mores, either on principle or with reference to age
This definition of capacity to consent is commonly used in the courts and in theory; certain nuances, however, may be passed over here. Cf instead BGHSt 12 (1959) 379/382 and Eser in Schönke and Schröder (note 6 above), section 223, note 38 with further references
Even if by virtue of section 1626, subsection 2 of the German Civil Code parents must take into account the “growing ability and desire of children to act independently and on their own responsibility,” such a need for personal decision-making (without parents, participation) will probably have to be disavowed at least in the cases of irreversible operations that we are dealing with here
Cf Bundestags-Drucksache (Government Publication) VI/3434, p 41, and Lenckner in Eser and Hirsch (note 5 above), p 174, who correctly takes the view that article 1 of the West German Constitution (Grundgesetz) has excluded the possibility of provisions being enacted on the model of the Hereditary Health Act (Erbgesundheitsgesetz) of 1933/41
Cf Hinz in Münchner Kommentar zum BGB, 1978, section 1626, note 44
Cf sections 1773 and 1793 of the German Civil Code
Cf sections 6 and 1896ff of the German Civil Code
Cf section 1910, subsection 2 of the German Civil Code. In practice special guardianship of the handicapped is preferred, as indicated by the endeavor as far as possible to allow those affected themselves to collaborate in the taking of fateful decisions. On this see Goerke in Münchner Kommentar, section 1910, note 16ff
Cf section 1666, subsection 1, sentence 1 of the German Civil Code. De lege ferenda, an opportunity for preventive control — which is nonexistent under the present law — ought to be created. Cf also note 33 below
Bundestags-Drucksache VI/3434, section 226 b
This suggestion was silent on the question of the requisite degree of risk
See Lenckner in Eser and Hirsch (note 5 above), p 190; Henke (1976) Ergänzende Maßnahmen zur Neuregelung des Schwangerschaftsabbruchs. Neue Juristische Wochenschrift, p 1776
Becker (1972) Das Sterilisationsproblem im neuen Strafgesetzentwurf. Zeitschrift für Evangelische Ethik, p 334
Also Lenckner’s view (see note 22 above). Cf also LG Berlin, Zeitschrift für das Gesamte Familienrecht 1971, p 668 (where, however, the decision was incorrectly based on section 4, subsection 2, KastrG)
At any rate this argument cannot be controverted on the basis that sterilization is not an ultima ratio because an abortion may, if necessary, also be considered. In contradistinction to the comparison between sterilization and other less radical and therefore preferable contraceptive measures, a legal interest (unborn life) not relating to the patient herself in also affected through performance of an abortion
According to the Alternativ-Entwurf, Strafsachen gegen die Person, vol 1 1970, p 53, the whole complex of sterilization and castration of the mentally ill who are incapable of giving their consent ought to be dealth with in a special administrative law
Cf Wimmer (note 3 above), p 130
Cf Jürgens in Eser and Hirsch (note 5 above), p 16
For a similar view see Lenckner in Eser and Hirsch (note 5 above), pp 190ff
See Kohlhaas (1968) Zur Sterilisation bei Minderjährigen aus eugenischen Gründen. Deutsche Medizinische Wochenschrift 229. Kohlhaas also concludes in favor of allowing prophylactic sterilization on eugenic grounds of minors incapable of consenting; he calls for the intervention of the guardianship court and of the juvenile court service (Jugendgerichtshilfe) under existing law, without, however, indicating the legal basis for this. De lege lata, there is at the most the possibility of a voluntary application to the guardianship court in accordance with section 1631, subsection 3 of the German Civil Code
In this sense Lenckner, in Eser and Hirsch (note 5 above), p 191 ff
It is common knowledge that adoption can scarcely be procured for children of mentally handicapped parents
Wimmer (note 3 above), p 131, correctly takes a cautious view
This also applies to foster children and minors under the age of 16 who are living in homes. Although by virtue of sections 31 and 79 of the Juvenile Welfare Act (Jugendwohlfahrtsgesetz: JWG) such persons are subject to the supervision of the juvenile welfare office, effective preventive control is nevertheless not guaranteed, since the duty of foster parents to notify the authorities pursuant to section 32 JWG only relates to the taking in, handing over, change of address, and death of the child. In state legislation these duties have been partly extended (see for instance section 14, subsection 2, sentence 2 of the Baden-Württemberg Landes-JWG: duty to notify any change crucial to the granting of permission to act as foster parent that affects the situation of the foster child or parent). The extension of these duties does not, however, cover measures relating to the care of the child. As regards the decision to sterilize a mentally infirm adult, some guardianship courts consider it necessary in an analogous application of section 4, subsection 2, and section 6 KastrG that the consent of the authorized special guardian should be approved. Whether this approach is correct need not be decided here; in any event it is not applicable to minors under parental control
Cf Bundestags-Drucksache VI/3434, sections 226 b and 226 c
Cf section 3 of the Danish abortion statute of 1973, under which an abortion is, inter alia, permissible when the woman as a result of physical or mental affliction or of weakness of aptitude (no 4) or in consequence of her youthful age or immaturity (no 5) is not in a position to care for her child in a satisfactory manner. See also section 97 of the Austrian Penal Code of 1975, according to which the minority of the pregnant woman at the time of her pregnancy constitutes a ground for abortion
See Eser in Schönke and Schröder (note 6 above), section 218 a, note 6; Lenckner in Eser and Hirsch (note 5 above), p 178
For this view see Bundestags-Drucksache VI/3434, pp 29 ff on the 1972 draft of a Fifth Penal Law Reform Act
See Eser in Schönke and Schröder (note 6 above), section 218 a, note 6; Lenckner in Eser and Hirsch (note 5 above), p 178
Eser, Lenckner (note 36 above)
For further details regarding the general indication for a precarious situation, including problems of adoption, see Eser in Eser and Hirsch (note 5 above), pp 160ff
Cf Eser in Schönke and Schröder (note 6 above), section 218 a, note 38
See Lenckner in Eser and Hirsch (note 5 above), p 177
Competence to act as representative in case of incapacity to consent is not restricted to particular indications but is general: see Eser in Schönke and Schröder (note 6 above), section 218a, note 58
Apart from the control of abuse under section 1666 of the German Civil Code, there is no provision under existing law for participation by the guardianship court in making the decision; cf also note 33 above, and regarding legal policy Henke (note 22 above)
Cf Lenckner in Eser and Hirsch (note 5 above), p 179
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Eser, A. (1986). Contraception and Abortion in Mentally Handicapped Female Adolescents Under German Law. In: Carmi, A., Schneider, S., Hefez, A. (eds) Psychiatry — Law and Ethics. Medicolegal Library, vol 5. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-82574-3_36
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