Bundesgerichtshof (sixth civil division) 213/00 VI ZR 213/00
04 December 2001
Translated by:
Raymond Youngs
Professor Basil Markesinis

The claimants are a married couple, parents of identical twins born on the 6th March 1995. They claim compensation from the defendant doctors in respect of the maintenance of one of the twins, their daughter S. She was born with severe deformities of her limbs. Her right leg is misaligned, her left leg is withered and her right arm is stiff. The other child was healthy.

The first claimant had pregnancy investigations carried out regularly in the defendants' community practice, which, besides the usual care measures provided for in the mother and child record included an extended deformity diagnosis. The claimants accuse the defendants of not having recognised in these investigations the deformities of their daughter S. as a result of a culpable diagnostic error. They claim that they would have decided in favour of an abortion, which would have been legally permissible, if they had known of the severe disability.

The defendants deny mistakes in the care of the first claimant during her pregnancy. The deformities of the daughter S. could not have been established under the circumstances then existing up the decisive point in time for an abortion, the course of the twenty-second week of pregnancy. Besides this, they take the view that a "selective" abortion (only in relation to the daughter S.) could not have been considered, even if her deformities had been known in time, because of the substantial danger to the other twin; and there was no legally permissible ground for an abortion of the whole pregnancy.

The Landgericht rejected the claim for reimbursement of the full maintenance requirements for the daughter S. (with applications for payment and a declaration). The claimants' appeal was unsuccessful. The appeal in law was rejected.

In the view of the appeal court, there is no need to decide whether the defendants can be accused of a culpable diagnostic error in the prior investigations in the first claimant's pregnancy. This was because according to the legal position applying at that time (§ 218a (2) and (3) of the StGB in the version of the Pregnancy and Family Assistance Act of the 27th July 1992 [reference omitted] in combination with the judgment of the Federal Constitutional Court of the 28th May 1993 [reference omitted]) an abortion was not permissible, even if the deformities of the daughter S. had been recognised at an early stage.

The prerequisites for a lawful abortion according to § 218a (2) of the StGB, old version (the so-called medical ground) had not been present. The first claimant had admittedly produced various medical certificates which indicated a certain tendency to depression; the causes for it had, however, been far back in the past and essentially based on problems which had had nothing to do with the pregnancy.

A lawful abortion could also not have been based on § 218a (3) of the StGB, old version (the so-called abnormality of the embryo ground). Doubts existed anyway as to whether there was sufficiently severe harm to the daughter S. In any case, a "selective" abortion of the harmed child only would have been impossible, because of the extremely high risk for the other twin. And no grounds had existed for a complete abortion, and hence the sacrifice of the healthy child, in the sense of § 218a (3) of the StGB, old version. Admittedly combinations of facts were conceivable in which, if an abortion were not undertaken, the mother's welfare could be impaired to such a substantial degree that a complete abortion, even taking into account the death of a healthy child, represented the only feasible alternative. But there could be no question of such a situation here. On an assessment of the interests of the pregnant woman on the one hand and of the children's right to life on the other, the balancing of interests could only lead to an outcome in favour of the two children.

The appeal court judgment withstands the challenges in the appeal in law.

The appeal court correctly assumes that a claim to compensation by the parents for culpable breach of a medical treatment contract for prenatal investigation in the context of pregnancy care, which has the purpose of avoiding the birth of a severely harmed child, can require the doctor to reimburse the (total) requirements for maintenance of a child born afterwards with severe disabilities (constant case law [references omitted]). Contrary to the view of the appeal in law, the appeal court correctly reached the judgement that in this case the prerequisites of such a claim are not to be regarded as fulfilled.

1. As the appeal court made no final findings in this respect, it must admittedly be assumed in favour of the claimants for the purpose of the appeal in law proceedings that the defendants did not recognise the disability of the daughter S. in the context of the pregnancy care as a consequence of a culpable medical mistake and the first claimant - had she received knowledge of the disability in time - would have wished a complete abortion.

2. However, the appeal court assumes correctly that such a mistake in treatment by the defendants could only lead to contractual liability to compensation for the harm which is the subject of the claim if an abortion had been legally permissible. The thwarting of a possible abortion because of the violation of a contract for treatment can only be the starting point for releasing the parents at a financial level from the burden of the child's maintenance by means of a contractual claim to compensation against the doctor if the abortion would have been lawful i.e. would have corresponded with the legal order and would not have been disapproved of by it (references omitted).

3. The judgement of the appeal court that the prerequisites for an abortion which would not be illegal were not satisfied in the present case is - contrary to the view of the appeal in law - not to be objected to on legal grounds.

a) The appeal court has, in examining the justification for an abortion which the first claimant might have desired, correctly referred to the legal situation which applied at the time of the omissions of which the defendants are accused. This was the rules about the so-called medical and abnormality of embryo grounds under § 218a (2) and (3) of the StGB in the version of the Pregnancy and Family Assistance Act of the 27th July 1992 (reference omitted) in combination with the judgment of the Federal Constitutional Court of the 28th May 1993 (reference omitted) which had at that time the following wording:

(2) An abortion undertaken by a doctor with the agreement of a pregnant woman is not unlawful if, according to medical findings, the abortion is necessary in order to avert a danger to the life of the pregnant woman, or a danger of a serious impairment of her physical or mental health, in so far as this danger cannot be averted by another method which would be reasonable for her.

(3) The prerequisites of para 2 are also to be regarded as fulfilled if, according to the medical findings, there are compelling grounds for the assumption that the child, as a result of an hereditary disposition or harmful influences before birth, would suffer from harm to its health which cannot be removed and which is so substantial that the pregnant woman cannot be expected to continue with her pregnancy. This only applies if the pregnant woman has proved to the doctor by a certificate under § 219 (3) sentence 2 that she has received advice at least three days before the operation, and if no more than 22 weeks have elapsed since conception.

b) The appeal in law unsuccessfully argues that the appeal court was incorrect in considering the prerequisites of § 218a (2) of the StGB, old version, not to be present.

aa) It is true that the observations in the reasoning in the appeal court judgment (that the causes for the first claimant's predisposition to depression lay in the distant past, were based on tensions in the private and vocational spheres and had nothing to do with the pregnancy) could not convincingly support denial of a medical ground for an abortion on their own. This is because the only decisive question is whether - considering this depressive predisposition of the patient - on recognition of the disability of the daughter S., the prognosis would have been made that future risks threatening the first claimant's mental health had to be assessed as so serious that they could justify abortion under § 218a (2) of the StGB, old version.

bb) The appeal in law claims in this respect that the appeal court did not have sufficient regard to relevant facts submitted and proved by the claimants. Thus, in the grounds for the appeal, reference was made to the risk that the mother would not stand the burdens associated with the supervision and care for the future of a disabled child; and therefore there was a real danger that a chronic depression would develop which might well not be curable. The claimants had offered proof on this point by obtaining an expert's opinion. But this only very general submission by the claimants on the effects of the actual disability of the daughter S., and on the type and extent of the depression which was feared, had to be weighed for one thing by reference to the medical certificates mentioned in the appeal judgment and also referred to in the grounds for the appeal in law. From these certain depressive illnesses emerged for time periods (some of which were in the distant past) before the claimant's pregnancy. They admittedly needed treatment, but were certainly not of a measure and significance which could be evaluated as a serious threat to mental health in the sense of § 218a (2) of the StGB, old version (see, on the requirements for comparable psychological illnesses, the Senate judgment [reference omitted]). Further, consideration had to be given, in assessing the submissions quoted by the appeal in law from the grounds for the original appeal, that it had been further stated there that the depressive illness feared would also have actually occurred; the claimant would suffer "from conditions of exhaustion and anxiety which would substantially impair her efficiency and her zest for life". Disturbances of this kind, which would therefore have coincided, according to the claimant's submission, with the prognoses that had been possible in the context of the pregnancy, could not however be seen as sufficiently serious dangers for the mental health of the pregnant woman to justify an abortion of the twin pregnancy on a medical ground. This would assume an exceptional definition, exceeding what the pregnant woman could be expected to endure (references omitted), and which had not been demonstrated here for the first claimant. In this state of affairs, the appeal court was not required on procedural law grounds to obtain evidence by expert opinions about the submission which the appeal in law claimed had been overlooked.

cc) The appeal court could therefore in the end result, without any error of law or procedure, deny the existence of a justification on the medical ground for the abortion which the claimants thought was possible. The question can therefore remain open of whether - if the prerequisites of § 218a (2) of the StGB, old version, were to be seen as fulfilled - a mistake in treatment by the defendants leading to the operation not taking place (having regard to the protective purpose of the treatment contract existing between them and the first claimant) could have led to a duty by the doctors to provide an indemnity in respect of the maintenance needs of the daughter S. This is because, in so far as an abortion comes into consideration on the medical ground for preventing serious danger to the pregnant woman's health, the protective scope of the contract for treatment does not in general extend to protection from the burden of maintenance expenditure for the child (references omitted). The claimants have not argued that this burden of subsequent maintenance of the child posed a decisive threat of an adverse effect on the mother's health, nor is this claimed by the appeal in law. Having regard to the state of affairs present here, and the legal position which determines its assessment, no further discussion is needed as to whether and in what special circumstances besides these an extension of the claim to compensation for reimbursement of maintenance requirements could be considered if the relevant damage to the mother's health is based on the burdens of "having" and caring for a child born disabled, in cases of an abortion which would have come into consideration on the medical ground but is not carried out.

c) The appeal in law must also fail in so far as it objects to the denial in the judgment on appeal of the ground of abnormality of the embryo for the abortion in accordance with § 218a (3) of the StGB, old version.

aa) Even the appeal in law does not question the appeal court's starting point that here on medical grounds only a complete abortion in respect of the twin pregnancy could have been considered. According to her submissions, the first claimant would have decided to have this if she had received an appropriate explanation. Because of the substantial risks which threatened the second child if an attempt had been undertaken to destroy the damaged foetus alone, a "selective" abortion was out of the question from the outset.

bb) Facts of this kind, in which the right to life of two unborn children, of whom only one is harmed before birth, is set against the burden of a mother confronted with such a situation, does not correspond to the typical conflict situation which was to be regulated by § 218a (3) of the StGB, old version (references omitted). This provision assumes the normal case that the pregnancy is limited to one child threatened by harm before birth, and from this poses the question of whether it can be expected of the mother, taking into consideration the seriousness of this harm, to carry this child to term and to give birth to it. She should not be compelled to do this if she understandably sees herself as not in a position to bear the burdens associated with this and to provide the special care and supervision. The present set of facts deviates to a substantial extent from this situation, for one thing because of the right to life of the second child, who was not harmed, and for another because of the mother's resulting situation which was clearly altered by all this and had, in fact, positive aspects.

cc) It does not have to be decided conclusively in the present case whether one should agree with the appeal court in holding that, in spite of these peculiarities, in such a set of facts as exists here with the twin pregnancy, a total abortion, justified on the ground of the abnormality of the embryo by the harm to only one child, is not excluded generally and from the outset. Whether an abortion would be excluded from the point of view of an impermissible invasion of legal interests of a third party (reference omitted) may appear to be questionable. The ground defined in § 218a (3) of the StGB, old version, is connected to the burdens to which the mother is exposed by the continuation of the entire actual pregnancy with all its consequences. Within the framework of this pregnancy, the other (healthy) twin is not an external third party, but bound up in a "community of fate" (reference omitted) in which its legal rights and interests cannot be seen and evaluated detached from those of the other participants (mother and twin sibling). On this basis it could be regarded as doubtful whether it can be required of a pregnant woman always and under all circumstances to carry the sick embryo to term for the sake of the healthy one (references omitted). Even in such a case, a decision could in any case be made about a justification for the (total) abortion based on the concept of § 218a (3) of the StGB, old version, only within the framework of a balancing of interests which, having regard to the special circumstances here because of the twin pregnancy, considers the legal interests (especially those protected in constitutional law) of the pregnant woman and of the unborn children.

Having regard to the great weight which the twins' right to life acquires in such cases (when one of them is not harmed before birth, and for that one, therefore, the basic requirement of the abnormality of the embryo ground itself is not realised) the necessary balancing of interests could lead at the most to a justification of abortion of the whole pregnancy if the expected burden on the pregnant woman is to be assessed as especially serious. In this respect, distinctly higher requirements must be placed here for finding a conflict situation supporting a decision in favour of an abortion than in a typical case of § 218a (3) of the StGB. For the fulfillment of such strict requirements, decisive weight would have to be attributed to the measure and severity of the harm to the one twin, having regard to the especially grave consequences resulting from this for the mother, who sees herself exposed to the task of having to cope with both children and their particular natures in care, supervision and attention. Attention should be given at the same time to the actual initial physical and psychological situation of the pregnant woman; but, on the other hand, the additional positive aspects ought not to be left out of account which result here from the fact that the mother brings a further child into the world.

dd) Having regard to these considerations, the appeal court could in the present case - contrary to the view of the appeal in law - without legal error regard the prerequisites for a lawful abortion of the twin pregnancy based on § 218a (3) of the StGB, old version, as not fulfilled. In the appeal court judgment, the disabilities of the daughter S. are assessed unexceptionably and the appeal in law cannot show effective objections against this. In particular, she is perfectly healthy mentally; her physical disabilities admittedly only enable her to move around in a wheelchair, but they allow her to participate in life in the family and society. Having regard to the high requirements explained above for the conflict situation in a case of this kind, the appeal court has undertaken the balancing of interests correctly, also taking into consideration the claimant's interests, in favour of the right to life of both children. It has not in any respect drawn the boundaries of what is to be expected of the pregnant woman too widely; in fact it has taken sufficient consideration of her interests and subjective ability to withstand stress (reference omitted).

This also applies in so far as the appeal in law relates to the mother's small psychological capacity for withstanding stress. Even if one incorporates into the assessment the claimants' submissions on the first claimant's threatened depressive illness (which were mentioned above, and the appeal in law claimed were overlooked with regard to the problem of a medical ground) no burdens arise from this, on the understanding explained above, to an extent which would have legally required the family situation after the birth of both children to be considered from the first claimant's viewpoint as so hopeless and burdensome that she could no longer be expected to continue with the twin pregnancy. Therefore within the framework of the examination under § 218a (3) of the StGB, old version, the presentation of evidence called for on these submissions was not needed.

The claimants' appeal in law was therefore to be rejected with the consequences in costs of § 97 (1) of the ZPO (Civil Procedure Order).

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