Legislation about (forced) sterilisation

The German Civil Code (BGB) includes several legal provisions on forced sterilisation.

In Germany, sterilisations may not be performed on persons who did not consent. In practice, patients are considered capable of giving consent if they can understand the significance and implications of the decision after being informed by the physician and can direct their will accordingly.

If the persons are legally considered unable to consent, section 1905 (1) of the German Civil Code (BGB) provides the possibility for the guardian of a person deemed incapable of consenting, to consent for them. 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. 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 sterilisation of minors is prohibited without exception (section 1631c BGB).

In Germany, forced sterilisation also falls under the criminal offence of serious bodily injury (section 226 of the German Criminal Code – StGB).

Forthcoming change in the legislation

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 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).

In response to these comments, the Act on the Reform of Guardianship Law will enter into force on the 1^st of January 2023.  The Act will only permit the sterilisation of adults only if they declare being in favour of it (according to the forthcoming article 1830, paragraph 1, no. 1 of the amended Civil Code). In theory, therefore, persons who are unable to form or express a natural will may no longer be sterilised as of 1 January 2023. For consent to sterilisation to be valid, a judge must appoint a special legal representative whose consent to sterilisation requires the approval of the competent court (future article 1817, paragraph 2 of the Civil Code). In addition, the ancient requirements of article 1905, paragraph 1 would still have to be met (the person under guardianship will remain permanently incapable of giving consent; that without the sterilisation a pregnancy would occur, as a result of which a danger to life or a danger of serious impairment of the physical or mental state of health of the pregnant woman is to be expected; and that the pregnancy cannot be prevented by other reasonable means.)

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.

According to the GREVIO Report on Germany (2022), there are no data available on the number of criminal proceedings or convictions for the specific crime of causing an inability to procreate; only overall statistics for aggravated bodily harm are available.

The Federal Ministry of Justice and Consumer Protection stated its intent to carry out a research project on sterilisation in guardianship law, which would, among other things, examine the situation in practice before and after the Act on the Reform of Guardianship Law entered into force. Research suggests that the actual number of women who are legally incapacitated and undergo sterilisation is much higher, as not all of them go through court proceedings.

The GREVIO also noted that while the reform of the Guardianship Law appears, at first sight, to improve the self-determination of women with disabilities, it remains to be seen whether it will reduce the number of court-approved sterilisations in practice.