Germany's legislation on forced sterilisation
Legislation about (forced) sterilisation
The German Civil Code (BGB) includes several legal provisions on forced sterilisation.
Section 1905 (1) of the German Civil Code (BGB) provides for the possibility for the guardian of a person deemed incapable of consenting, to consent to her sterilisation. However, the guardian has to respect the will of the person concerned. As such, if the person expressed rejection of their sterilisation, the guardian is required to follow and respect this will. The provision allows the guardian to determine the person’s actual will.
Sterilisation requires the appointment of a sterilisation custodian and approval of the guardianship court to ensure that the actual will of the person is considered. The sterilisation of minors is prohibited (section 1631c BGB).
In Germany, forced sterilisation falls under the criminal offence of serious bodily injury (section 226 of the German Criminal Code – StGB).
In 2015, the CRPD Committee recommended the State party repeal section 1905 of the German Civil Code, and adopt legislation prohibiting sterilisation without the full and informed consent of the person concerned based on substituted consent.
In this regard, in its 2019 report to the CRPD, Germany explained that repealing the aforementioned section would reduce the protection of persons under guardianship against manipulation and pressure while expressing their consent which is examined by the State. Germany added that Section 1905 of the Civil Code was “among the most controversial provisions of guardianship law” and informed that the Government is planning to research on sterilisation in guardianship law (to review this provision in light of the CRPD requirements).
The German Institute for Human Rights deplored the lack of engagement from Germany “to strengthen the ability of women with disabilities to make autonomous decisions about their reproductive rights. A survey of women living in institutions run by disability services providers reported that different techniques have been used to induce women to consent to sterilisation (withholding information, provision of false information, emotional pressure).
Data related to the matter
According to the statistics referred to by the German Institute for Human Rights in 2017, 17% of all women with disabilities aged 15 to 65 have been sterilised against 2% of the women nationwide. In 2016, out of 31 requests for approval of sterilisation filed by a legal guardian, 23 were approved.