BGH NJW 1995, 1609 VI ZR 356/93 (Bremen)
28 March 1995
Professor B. S. Markesinis
Mr Raymond Youngs


The claimants claim compensation for a failed abortion in September 1979 in connection with the birth of their child E on the 5th April 1980. The operation was carried out by the defendant gynaecologist on emergency grounds (§ 218a (2) no. 3 of the Criminal Code in the version of the 15th Criminal Amendment Act of the 18th May 1976 (hereafter called § 218a of the Criminal Code, old version)). The claimants say the defendant made mistakes in treatment and seek, amongst other things, compensation for maintenance expenditure on E. The appeal court dismissed the claim on the 26th February 1985. The Senate quashed this judgment on the 15th April 1986 and referred the case back to the appeal court for another hearing and decision. After further elucidation of the matter, the appeal court on the 16th January 1991 amongst other things ordered the defendant to pay 188 DM a month from June to December 1988 as maintenance compensation, but rejected the rest of the claim. The Senate on the 25th February 1992 referred the case back to the appeal court, as claims to compensation for further material harm had been disallowed. The parties agreed to settle the main issue by payment of 4936 DM with 4% interest from the 5th February 1991, but the claimants applied for interest on this sum at 4% from the 15th March 1982 to the 4th February 1991 and for payment for E of maintenance increasing incrementally to the end of E's 18th year. They also asked for a declaration that the defendant was obliged from then on to make periodic payments in accordance with the then current Standard Subsistence Order, so as to relieve the claimants from their duty of maintenance if E could not work or received long term academic or vocational education, and to compensate them for all additional financial burdens in connection with the birth of E, insofar as third parties had no duty to provide an indemnity for these. The first claimant's claim is limited to a sum equal to the monthly interest on the owner-occupied flat and expenses exceeding the normal duty of maintenance.

The appeal court awarded the interest claimed and otherwise rejected the claimants' appeal. The claimants' appeal in law was unsuccessful.


I. The appeal court states that, having regard to the judgment of the Federal Constitutional Court of the 28th May 1993 (reference omitted), doubts existed about following the case law of the BGH so far on failed abortion in respect of the claims made in the present proceedings. It was in fact to be deduced from this judgment that expenditure on maintenance for an undesired healthy child could not in any case be the basis of a claim to compensation, for constitutional reasons (Art 1 of the Basic Law). Therefore the material claim to compensation on defective performance of the doctor's contract in cases of this kind was limited to the payment back of the remuneration given and to compensation for the woman for the failed abortion. Nor could any different view be derived from the judgment of the deciding Senate of the 16th November 1993 (references omitted) which instead left open whether contracts about abortions could still be the basis of a claim for compensation within the framework of the earlier abortion time limit or in cases of so-called emergency grounds...

II. These statements withstand the challenges in the appeal in law in the end result.

1.a) The deciding Senate admittedly does not agree with the appeal court in its view, referring to the judgment of the Federal Constitutional Court of the 28th May 1993, that Art 1 para 1 of the Basic Law prevented the claimants in the present case from asking for compensation for their burden of maintaining their son E from the defendant doctor, because it violated the basic right of the child to respect for his human dignity to conceive of the duty of the parents to provide maintenance for him as harm. Certainly Art 1 of the Basic Law prevents the existence of a child being assessed as harm. However, in cases in which the doctor has bound himself by contract to avoid the burden of maintenance resulting from a child, the classification of this burden as harm to the other party to the contract for which he must provide compensation does not lead to such an assessment. The deciding Senate has given more precise reasons for this in its judgment of the 16th November 1993. It also explains that the statements of the Federal Constitutional Court in the judgment of the 28th May 1993 do not acquire any binding force on this point. The Senate makes reference to this.

b) Nevertheless the judgment on appeal still stands in the end result. The basis of the case law of the deciding Senate so far on such claims was the view that a contract for the undertaking of an abortion where one of the grounds described in § 218a of the Criminal Code, old version, here the so-called emergency ground under paragraph 2 no. 3, was present, could be effective in law and in the case of defective performance could be the starting point for a claim for compensation in civil law (references omitted)...

In the light of this interpretation of the Constitution, by which the deciding Senate considers itself to be bound, the initial question of whether and to what extent the contract about the abortion gave rise to legal consequences, which has so far been given a positive answer by the Senate in the present case, needs fresh examination.

aa) Until the decision of the Federal Constitutional Court of the 28th May 1993, and therefore also in the present case, the Senate proceeded on the basis that abortion in order to prevent the danger of an emergency for the pregnant woman was not only unpunishable but also legal if it fulfilled the material prerequisites of § 218 (2) no. 3, (3) of the Criminal Code, old version, the pregnant woman had taken advice in accordance with § 218b of the Criminal Code, old version, and the emergency had been established by a second doctor in accordance with § 219 (1) of the Criminal Code, old version, as well as by the doctor entrusted with the abortion itself. In this connection the Senate has attached central importance to the findings of the doctors concerned for affirming the presence of such a ground...

bb) These findings do not suffice to allow the intended abortion to appear as legal according to the interpretation of the Basic Law by the Federal Constitutional Court in its judgment of the 28th May 1993, which binds the courts. It is true that according to this (reference omitted) an abortion on the basis of a social or personal psychological emergency in respect of the pregnant woman can exceptionally be declared by the legislator not only to be unpunishable but also to be legal. However the prerequisite for this is the imposition of a burden on the pregnant woman which requires such a degree of sacrifice of her own basic human values that the duty to carry a child to full term cannot be required of her. As the Federal Constitutional Court has further stated, this only applies for emergencies of the kind under consideration here if the severity of the social or personal psychological conflict is so clearly recognisable that - looked at from the viewpoint of unreasonableness - congruity is preserved with the other grounds, namely medical and criminological grounds, and even (assuming it is sufficiently precisely defined) the ground of abnormality of the embryo. Such an exceptional state of affairs could additionally, so the Federal Constitutional Court states, only provide justification if its prerequisites have been assessed and established, having regard to the claim to protection of the unborn human life, by the courts or by third parties whom the state can trust by virtue of their special position of duty and whose decisions are not beyond any review by the state (reference omitted).

cc) On this basis an emergency ground justifying the abortion cannot be assumed on the ground of the stress syndrome claimed by the second claimant. Admittedly the deciding Senate in the present case, as on other occasions, proceeded on the basis that for the emergency ground, as an exceptional state of affairs justifying the abortion, requirements were to be placed on the situation of conflict for the pregnant woman which were comparable to those for the medical ground or the ground of abnormality of the embryo. The Senate has particularly emphasised this by the reference to the judgment of the Federal Constitutional Court of the 25th February 1975 (reference omitted). However the Federal Constitutional Court has in the judgment of the 28th May 1993 asked for special requirements in respect of the guarantee for these prerequisites being really fulfilled in the actual case. These requirements do not permit such an emergency ground to be assumed simply from the carrying out of counselling and medical examination procedures until proof of the contrary by the defendant doctor. Instead, concrete findings of an exceptional situation, which is clearly demonstrated as such for the benefit of the courts as well, are necessary here. The appeal court has however not been able to make such findings even after repeated examination of the claimants' arguments. It is not evident that it had made any requirements in this connection which were legally incorrect.

dd) Therefore it must be assumed that the abortion to which the defendant committed himself was not justified by an emergency ground, even on fulfilment of the prerequisites for freedom from punishment. Whether in the present case the contract is therefore to be regarded as void under §§ 134 or 138 of the BGB or whether it fulfills the prerequisites under which, according to the judgment of the Federal Constitutional Court of the 28th May 1993 (reference omitted), these provisions, in the case of defective performance, may not on constitutional grounds in principle stand in the way of more precisely described contract law sanctions, can remain open. In any case, the contract cannot be the basis for a contractual claim for compensation, at least at the economic level, to restore the result which the parties intended by the contract, which was avoidance by the claimants of the social and economic burdens of another child, which is disapproved by the legal order under the given circumstances. Therefore the basis is removed from the claimants' request for compensation for their maintenance expenses...

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