BVerfGE 96, 375 Bundesvefassungerischts (First Division)
12 November 1997
Professor Basil Markesinis
Raymond Youngs

The constitutional complaints are dismissed.



The constitutional complaints, joined together for a joint decision, concern the case law of the civil courts, according to which the duty to maintain a child in the case of unsuccessful sterilisation or defective genetic advice can constitute a loss which has to be compensated.


Case 1 BvR 479/92

1. The complainant is a practising urologist. He advised the husband of the claimant in the original proceedings on questions of family planning and carried out on him a medical operation for the purpose of sterilisation. The sterilisation was unsuccessful and the patient was not told of this. His wife gave birth in May 1984 to their fourth son. The complainant and his liability insurer refused claims for compensation for loss.

2. a) In the original proceedings the wife asked for compensation for maintenance expenditure for the child as well as compensation for pain and suffering because of the unwanted pregnancy and the birth of the child.

The Landgericht ordered the complainant to provide the basic maintenance which would be payable for illegitimate children and to pay a supplement of 70% of that basic maintenance for expenditure on care. As the mother had sued alone, only half of the total maintenance expenditure to be paid was awarded to her, in accordance with the legal concept expressed in § 1360 sentence 2 and § 1606 (3) sentence 2 of the BGB. Besides this, the Landgericht held compensation for pain and suffering in the sum of 6000 DM to be appropriate.


Case 1 BvR 307/94

1. The first and second claimants in the original proceedings are the parents of a daughter who was born in 1982 and was mentally and physically handicapped from birth onwards. Because they feared a genetic disposition to the procreation of handicapped children, in August 1983 they visited the department for clinical genetics of a university institute, which was at that time headed by the complainant, to have the risk of hereditary diseases clarified before deciding to have a further child. The complainant signed a doctor's letter a copy of which was shown to the two claimants. According to this, a hereditary disorder was extremely unlikely; the couple need not be advised against a further pregnancy. In March 1985, a second daughter was born with the same mental and physical handicaps as her sister.

2. a) The Landgericht dismissed the claim to compensation for maintenance (by the parents) as well as the claim to damages for pain and suffering (by the mother and the handicapped daughter) on the basis that the claimants had not succeeded in proving that the advice given was in breach of duty.

b) The Oberlandesgericht awarded the parents on their appeal compensation for the material harm which had arisen and would arise for them in the future from the total expenditure on maintenance for the handicapped child. It granted to the mother damages for pain and suffering in addition to this. It refused claims by the child herself.c) The child withdrew the appeal in law which had originally been submitted. The appeal in law by the complainant was only accepted and referred back by the Bundesgerichtshof in relation to the contractual liability for compensation for harm (reference omitted).

In the grounds, it states as follows. The Senate adheres to its case law that a doctor's contractual liability can include expenditure on maintenance of a child. This case law was applicable to the case of defective genetic advice before the conception of a child. It was true that the Second Senate of the Federal Constitutional Court in its judgment of the 28th May 1993 in the 14th paragraph of the summary, as well as under D V 6 of the reasons, (reference omitted) raised doubts about this point. Even if no binding effect is to be attributed to these statements and although the Senate has subjected its case law to critical examination on several occasions, they do however make a further detailed scrutiny of the legal situation necessary. The Senate cannot however infer from this reference by the Federal Constitutional Court any reasoning which would prevent adjudging maintenance expenses to be loss in the present case.


The Second Senate of the Federal Constitutional Court has expressed itself in the form of a decision of the 22nd October 1997 on the present case. The majority was of the opinion that the legal view expressed in [reference omitted] to the effect that it was not permissible on constitutional grounds (Art 1 para 1 of the Basic Law) to see the duty to maintain a child as loss was a legal view fundamental to the decision of the Senate. Further, the majority took the view that the deciding of the preliminary question of whether a legal view was of fundamental importance ought to be by a plenary session of the Court if the Senate which expressed the legal view stated that it was of fundamental importance, whilst the other Senate held it not to be fundamental.

An inquiry under § 48 (2) of the Standing Orders of the Federal Constitutional Court by the First Senate has not taken place.


The constitutional complaints are unfounded. The decisions under challenge do not exceed the boundaries which are set constitutionally for the development of the law by judicial decisions (I). They also do not in their material content violate the basic rights (II).


The decisions under challenge by which the complainants have been ordered to pay compensation for harm and for pain and suffering adhere to the principle that the judge is bound by statute and law, so a violation of the basic rights from this point of view is eliminated.

1. The provisions of the civil law of contract and tort which form the basis of the judgment (in particular §§ 611, 276 and 249 as well as §§ 823 (1) and 847 of the BGB) do not meet with any doubts in constitutional law. They have always served the judge as a sufficiently definite basis for deciding questions of liability.

2. The interpretation of these provisions by the civil courts does not overstep the boundaries of the judges' authority to make decisions which arises from Art 20 paras 2 and 3 of the Basic Law.

a) The interpretation of simple statute law (inclusive of the choice of the method to be used in this connection) is a matter for the specialist courts and not to be investigated by the Federal Constitutional Court as to its correctness. The Federal Constitutional Court only has to ensure that the requirements of the Basic Law are observed in this respect.

Art 20 para 2 of the Basic Law gives expression to the principle of separation of powers. Even if this principle was not formulated in the Basic Law in the sense of strict division of functions and monopoly of each power by a single organ (references omitted), it in any case excludes the courts from claiming powers which have been conferred unambiguously on the legislator by the Constitution (references omitted). Art 20 para 3 of the Basic Law binds the judiciary to statute and law. It would be incompatible with this if the courts progressed from the role of applying of norms to that of setting norms and thus, from an objective point of view escaped from being bound by law and statute (references omitted).

These constitutional principles admittedly do not prohibit the judge from developing the law. On the contrary, in the face of accelerated change in social relations and the limited possibilities of reaction by the legislator, as well as the open formulation of numerous norms, the adaption of applicable law to changed circumstances is part of the tasks of the third power [ie the judiciary]. That applies especially as the distance in time between the statutory command and the judicial decision in the individual case increases. The Federal Constitutional Court has made this point with regard to the Bürgerliches Gesetzbuch (reference omitted).

The judge certainly cannot escape here from the meaning and purpose of the statute laid down by the legislator. His task is limited to bringing it into effect in the most reliable way under changed conditions. If, in the changed conditions, new possibilities of action or influence are created by scientific and technical progress, finding the law will as a rule consist of widening of the field of application of an interpretation which is already current. The legislator's prerogative of setting the purpose is not generally affected by this.

As the development of the law affects the ordinary law, answering the question of whether and to what extent changed circumstances require new legal answers is likewise incumbent on the specialist courts. The Federal Constitutional Court is not therefore in principle allowed to replace their assessment by its own. Its control is limited from the point of view of Art 20 of the Basic Law to whether the specialist court, in developing the law, has respected the basic statutory decision and has followed the recognised methods of statutory interpretation.

b) The decisions under challenge satisfy this standard in relation to contractual liability for the maintenance of children as well as with reference to compensation for pain and suffering because of a pregnancy and birth which have occurred contrary to the woman's intention.

In relation to contractual liability the decisions under challenge are based on the conventional understanding of financial harm, according to which, in principle, duties to maintain can be seen as harm in the sense of § 249 of the BGB. The decisions are also based on the ascertaining of harm according to the "difference" method. The Bundesgerichtshof measures contractual liability by contractual purpose - avoidance of conception and birth of a legitimate child on economic grounds as well - and limits the area of protection of the contract to the marriage partner. The decisions rest on the principles on general contractual liability which have been developed over a long period, and which have been extended to new cases of medical professional activity. Whether a development of the case law on compensation for harm would have been possible in another direction needs no discussion here, as the Federal Constitutional Court does not in principle have to test questions of civil law doctrine in the ordinary law sphere. It corresponds in any case to the consequence of medical liability law as developed over a long period that, in cases of the present kind, the civil law has sought to give appropriate answers to new possibilities of influence and direction in reproductive medicine. It cannot be raised as an objection to this that the Bundesgerichtshof has, in laying down the scope of the duty to compensate for harm, held that limitations on the development of the law are necessary. The Bundesgerichtshof has, in its case law, restricted the liability of doctors in the light of value decisions at the point where problems of compensation law and family law meet.

That does not call in question the route to ascertainment of harm.

The boundaries of judicial discovery of law are also not exceeded by the decisions giving to women who did not want to be pregnant damages for pain and suffering for the pain associated with pregnancy and delivery. The objection that this is an impermissible widening of § 253 of the BGB does not sufficiently take into consideration the fact that § 847 of the BGB expressly permits monetary compensation for non-material harm. The Bundesgerichtshof is keeping within the framework of conventional civil law doctrine when as it assesses an undesired pregnancy as a substantial unauthorised invasion of physical integrity and therefore as physical injury.


The decisions, which are made by permissible judicial interpretation and development of the law, are also reconcilable with the Basic Law in their material content.

The subject matter of the examination here is the interpretation of norms which are not open to objection in constitutional law and the outcome and basis of the discovery of law by civil court decisions. The complainants object to the fact that they should have to be liable for the maintenance of a child when they have not fulfilled their contractual duties in relation to sterilisation and a child comes into the world as a result; or when, as a consequence of defective genetic advice, parents refrain from a form of contraception which they would otherwise have chosen and a disabled child is conceived and born. According to their view, for constitutional reasons, neither the duty of the parents to maintain ought to be understood as harm in the sense of contract law, nor the pains associated with pregnancy and birth as harm in the sense of tort law.


2. The decisions to be examined are likewise not to be measured against the basic right of freedom of vocation under Art 12 para 1 of the Basic Law. The civil law consequences of defective performance of contracts and liability for harm which arises from tort arise independently of whether the prerequisites for liability in the exercise of the profession are fulfilled or not. Neither the underlying norms of civil law nor their application in the original proceedings concern sanctions specific to a profession. The duty to provide compensation for harm can in any event have indirect effects on the exercise of professional activity as it emphatically underlines the expectation of careful fulfilment of the contract whilst observing professional standards; and it also has an effect on the scope of the required liability insurance. Contract law and tort law are not however norms which only concern in marginal areas those who not acting professionally and which therefore have a close relationship with the exercise of a profession. Objectively they have no tendency to regulate professions (references omitted).

3. There accordingly remains, as a standard for testing the imposition of requirements to pay money, the general freedom of action which is protected in Art 2 para 1 of the Basic Law. The basic right is admittedly only guaranteed within the framework of the constitutional order. All the legal norms which are formally and materially compatible with the Basic Law are included in this. Art 2 para 1 of the Basic Law is violated if, in the interpretation and application of such norms, objective constitutional law is contravened. In this connection, it can remain undecided here how far Art 2 para 1 of the Basic Law, in its character as guarantee of the general freedom of action, enables a complainant to rely on the violation of objective constitutional law where the protective purpose of the concrete basic right norm cannot be attached to him unambiguously (references omitted); this purpose is rather intended to protect the legal position of the successful opponent in the original proceedings. This is because the complainants complain of a violation of Art 1 para 1 of the Basic Law and therefore of a fundamental principle of the Constitution and the chief basic value of the free democratic basic order (references omitted). Whether the complainants could complain of a violation of Art 6 paras 1 or 2 of the Basic Law needs no final examination because these provision have no independent weight here as against Art 1 para 1 of the Basic Law.

a) The answer to questions of value in civil law is influenced by the objective decisions of principle which are expressed in the catalogue of basic rights in the Constitution. The specialist courts are accordingly under a duty on constitutional grounds to have regard to the basic rights as "guidelines" in the interpretation and application of civil law provisions. Just as with the interpretation of general clauses, special consideration must be taken of the constitutional law basic decisions in development of the law. If the courts overlook or misjudge their radiation effect in a decision in an actual case, they as exercisers of public power violate the basic rights of the party thereby affected (references omitted). A power of control (limited, though, to questions of constitutional law) arises from this for the Federal Constitutional Court. It only concerns mistakes in interpretation which reveal a fundamentally incorrect view of the meaning of a basic right, especially of the extent of its area of protection, and are also of some weight in their material scope (references omitted).

In this constitutional law control of civil court judgments, it must also be borne in mind that the protective content of the basic rights can be required to be put into the balancing process on the side of the person who is benefited by the decisions under challenge as well. In this case it is a question of the point where medical responsibility and the family sphere meet. When the further development of medicine facilitates medical assistance in the extremely private sphere of conception, for which the sexual partners are independently responsible, the tortious and contractual liability law of the Bürgerliches Gesetzbuch acquires in particular the function of safeguarding the personality rights of parent and child thereby endangered, the physical integrity of the wife and the personal right of self-determination of the parents. The detailed balancing of conflicting interests here is left to the judiciary, insofar as existing liability law is open to such a development. It may bear in mind here that the married couple would unilaterally carry the risk of a medical mistake if culpable medical treatment remained to a large extent without sanction in this area.

b) The Bundesgerichtshof has taken sufficient account of the radiation effect of Art 1 para 1 of the Basic Law in the shaping of the conditions for liability.

(1) A human being's social value and claim to respect, which prevents him or her being made a mere pawn of the state or exposed to treatment which in principle puts his or her quality in question, is connected with human dignity as the highest value in the Basic Law and a fundamental constitution principle (references omitted). It is inherent in each human being without regard to his or her qualities, achievements and social status. The worth and claim to respect which arises from it is capable of being violated (reference omitted). What respect for human dignity requires in detail cannot be completely detached from the social circumstances of the time (reference omitted).

A violation of the claim to respect can exist not only in humiliating, denouncing, persecuting or ostracising people (reference omitted) but also in commercialising human existence.

(2) The decisions under challenge do not contain any mistake which is relevant here.

That applies first of all to the assumption that sterilisation and genetic advice before the conception of a child are to be approved by the legal order and are legitimate. Further, the assumption that a doctor who undertakes such tasks under a contract must take responsibility for culpable mistakes is not open to doubt. The case law of the Bundesgerichtshof that the duty to maintain a child on the facts to be assessed here is to be seen as loss does not represent commercialisation which robs the child of its personal worth. The liability structure of civil law does not in principle affect human dignity, even where a claim to compensation for harm is directly linked to the existence of a human being. Human beings are not thereby reduced to objects ie replaceable quantities within the framework of contractual or tortious relationships. The civil law provisions and their interpretation by case law are planned on a just division of burdens. They do not result in fundamental areas of personality being commercialised. The application of the law of compensation for harm to personal relationships does not turn the human being as a person or his inalienable rights into a commodity. No more does the - partial - transfer of the burden of maintenance to third parties contain a negative value judgement against the particular person entitled to maintenance.

The personal recognition of a child does not rest on the acceptance of duties of maintenance by the parents. Even according to civil law, the existence of a child is only one of the defining conditions for the burden of maintenance arising under §§ 1601 ff. of the BGB. Not every child needs maintenance (§ 1602 (2) of the BGB). The duty of maintenance and parenthood can separate (references omitted). A full duty to maintain does not follow the adoption of children who have only lost one parent (§ 1755 (1) sentence 2 of the BGB in combination with § 48 (6) of the Social Code VI). Even the Reichsgericht differentiated between the existence of a child, which was not seen as loss, and the duty to maintain applying to the father which was classified as financial loss for him (reference omitted). The Bürgerliches Gesetzbuch forms the basis of relationships in compensation law between the members of a family under a duty to maintain and a person causing harm, without any debasing or objectification of the person entitled to maintenance being expressed thereby (§ 844 (2) in combination with § 843 (4) of the BGB). The same concept of compensation is taken up in numerous modern statutes on product, environmental and traffic liability (reference omitted). The inclusion of the foetus in accident insurance also presupposes that the dignity of the child is not violated by the persons under a duty to maintain it receiving a partial release (reference omitted).

No decision has to be made on what form of compensation for harm would be better to bring it into harmony with civil law doctrine. The Bundesgerichtshof has chosen the route of contractual liability for material harm, and not that of compensation for non-material harm, which it also considered. It has taken into account here that determination of harm by the "difference" method, as well as fair indemnification in money for the harm which arose though the unwanted conception, do not relieve the court from comparing the situations in life of parents with or without a child. It is only of importance in constitutional law that the division of burdens which the Bundesgerichtshof seeks to achieve, having regard to the statutory duties of maintenance accruing to the parents, does not violate Art 1 para 1 of the Basic Law.

It is also not the task of the Federal Constitutional Court to examine the arguments of the Bundesgerichtshof in all their details. They are not inconsistent with Art 1 para 1 of the Basic Law. The doctors ordered to pay compensation have freely undertaken contractual duties which are not disapproved of by the legal order. Medical assistance in family planning through sterilisation or advice about genetic risks before the conception of a child do not affect Art 1 para 1 of the Basic Law. If such advice conflicts with the personal ethical convictions of a doctor, he can refrain from concluding a contract; defective performance of a contractual duty willingly undertaken can find no justification here.

Insofar as doctors are active in this area, their specialist medical competence is in the service of responsible parents, if the parents do not want to have further children because they wish to protect economically children already born or because they are concerned about being overtaxed (here, by the birth of a second severely disabled child). Civil law liability for defective performance can, in cases of this kind, increase the parents' acceptance of the children who are nevertheless born and accepted into the family, as the Bundesgerichtshof has plausibly explained.

The arguments presented by the constitutional complaints that the case law of the Bundesgerichtshof contradicts the system of maintenance in family law, or that the child could be threatened with psychological harm if it heard that its conception should have been avoided, do not affect the basic concepts of Art 1 para 1 of the Basic Law. In this respect it is claimed that financial relief for the parents does not prevent different losses in view of the complexity of family relationships. That concerns questions of civil law appraisal which the Bundesgerichtshof has tackled in detail.

In the original proceedings it was a question of children to whom the parents have committed themselves after conception. Thwarted family planning, which has been used here by the Bundesgerichtshof as a basis of liability, can become known to children in many ways. Whether harm is produced by this does not depend on economic relief for the parents but on the parent-child relationship after birth. The claim for compensation for harm which has been allowed does not assume any alienation from the child (references omitted). There is also no fear that the judgments under challenge could give rise to or reinforce a negative attitude of the parties against the unplanned life which has been conceived. It cannot be assumed that doctors will advise abortion contrary to their ethical conceptions only because of the threatened liability or its effect on their professional liability insurance. It is even less likely that parents, because of the economic burdens from a further or a disabled child, would decide against the child, if relief is granted to them in this respect. The Bundesgerichtshof excludes any duty to reduce harm by means of an abortion. From the point of view of the parents, the case law under challenge here gives effect instead to the necessary protection against risks which are threatened for the parents' rights of personality and self-determination within the framework of planned parenthood as a result of medical involvement in sterilisation or genetic advice.


The above judgment does not, in view of the decision of the Second Senate of the 28th May 1993 (reference omitted), require the calling of a plenary session of the Federal Constitutional Court. The prerequisites of § 16 of the Federal Constitutional Court Act and of § 48 para 1 of the Standing Orders of the Federal Constitutional Court are not present. (However, see the decision of the Second Senate of the Federal Constitutional Court of the 22nd October 1997).


“The issue of substance raised by the German decision has proved controversial in that country as it has in the USA. The decision of the Second Division of the Constitutional Court (BVerfGE 88, 203 = NJW 1993, 1751 “second abortion” case) – known for its conservative tendencies – thus echoes the doubts expressed in the USA by those who sympathise with the pro-life position. Some (lower) courts immediately heeded the advice of the Constitutional Court to reconsider the question of civil damages and took a similar, conservative stance on the issue. (Thus, LG Düsseldorf 2 December 1993, NJW 1994, 805, refusing to follow the BGH decision of 16 November 1993, NJW 1994, 788, decided only a fortnight earlier. Likewise, OLG Zweibrücken, 18 February 1997, NJW – RR 1997, 666). In some instances, they were able to do this on the technical argument that the case before them involved a maintenance claims for a healthy child (whereas the BGH decision of 16 November had been concerned with the claims of the parents of an impaired child). But other courts refused to accept this as a valid distinction and abided by the more liberal position that awarded full maintenance costs to the parents. (OLG Düsseldorf, 15 December 1994, NJW 1995, 788.) In this steadfastness, these courts found an ally in the BGH. For this court not only had by-passed skilfully the Constitutional Court by drawing a distinction between the “existence of the child” and “”the obligation to maintain it” (BGH 16 November 1993, NJW 1994, 788); it had also been quick to reaffirm its views in a quick succession of judgments. (For instance, BGH 23 March 1995, NJW 1995, 1609.) The subsequent and most recent decision of the First Division of the Constitutional Court (BVerfG, 12 November 1997, BVerfGE 96, 375 = NJW 1998, 519) – which, unlike the Second Division, is known for its liberal tendencies - has broadly followed the line of the BGH. And the decision not to refer to the Plenum of the Court the dispute between its two rivalling Divisions (BVerfG, 22 November 1997, NJW 1998, 523) suggests that the status quo is unlikely to be disturbed in the near future. The position in private law thus seems to have settled in the following way. (i) Both parents have a contractual claim for wrongful birth and pregnancy cases; (ii) this entitles them to full maintenance costs (whether the child is healthy or not; if it is not the measure of damages may be greater to cover the extraordinary medical expenses); (iii) the mother may additionally claim pain and suffering in cases of wrongful birth that result from a complicated birth. In all these actions, the child, itself, had no claims.”

The quotation is taken from Basil Markesinis, The German Law of Obligations, vol II, The Law of Torts, 4th ed. by Basil Markesinis and Hannes Unberath, Hart Publishing (forthcoming 2002) with further annotations and extensive references to English, American and German Law. Wrongful birth and wrongful life actions were recently the subject of an important decision of the Assemblée Plénière of the French Cour de cassation of 17 November 2000 which is discussed from a comparative perspective by Professor B Markesinis, in RTD civ. (1) janv.-mars 2001, pp. 77-102.

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