Frauke Brosius-Gersdorf and the abortion in the 9th month: What she said, how it is so far

A heated debate has erupted over the lawyer who was supposed to become a constitutional judge. Here's what's known about her position and very late abortions in Germany.

Frauke Brosius-Gersdorf in the talk show “Markus Lanz” teutopress/imago

The sentence at the center of the dispute surrounding lawyer Frauke Brosius-Gersdorf was uttered in the early evening of February 10 in the Bundestag's main hearing room. The parliament's Legal Affairs Committee had convened to discuss a bill that would reform abortion law in Germany. The sentence can be found in the minutes of the meeting.

Frauke Brosius-Gersdorf, one of ten experts invited to the panel, stated that it was "highly controversial" in constitutional scholarship whether the embryo, and later the fetus in the womb, was entitled to the protection of the Basic Law's guarantee of human dignity. She then stated: "In my opinion, there are good reasons why the guarantee of human dignity only applies from birth."

This Friday, Brosius-Gersdorf, a native of Hamburg and a professor at the Faculty of Law at the University of Potsdam since 2021, was to be elected by the Bundestag as a judge at the Federal Constitutional Court. She was one of two candidates proposed by the SPD. But now the election of the new judges has apparently been removed from the agenda entirely—primarily because of the controversy surrounding Brosius-Gersdorf and her statement on human dignity. After initial fierce criticism of the lawyer was expressed on social media and right-wing portals, dozens of members of the CDU/CSU parliamentary group also expressed serious concerns.

In the sometimes highly heated debate, it is sometimes said that Brosius-Gersdorf advocates for allowing abortions up to the ninth month of pregnancy. If it were up to her, children should be able to be dismembered in the womb. It must be said: The lawyer never said any of this.

But there is also a serious debate surrounding the statement she made in the Legal Affairs Committee, which has outraged not only conservative, Christian-leaning politicians. According to her interpretation, when does the guarantee of human dignity apply? When a child has completely left the womb? From the moment it takes its first breath? What about a child just born, a child one week before birth? What about premature babies who are viable from the sixth month onwards?

When does an unborn child feel pain?

After the fertilization of an egg, the developing life is initially called an embryo. From the ninth week after fertilization, it is referred to – in medicine, science, and legal debates – as a fetus. From around the 22nd week, the child has grown sufficiently to be viable outside the mother's body, provided it is not too light and receives very intensive medical care. From the 24th week of pregnancy, premature babies have a good chance of survival; even then, they still require intensive care and continue to grow in an incubator where it is warm and protected from environmental germs.

When a fetus can feel pain in the womb is still scientifically controversial. It is often stated that the sensation of pain develops in the last trimester—the last three months of pregnancy.

Although it is known that unborn children have a chance of survival outside the womb early on, and assumed that they can feel pain even earlier, late abortions are already permitted in Germany. The second paragraph of Section 218 of the Criminal Code , which regulates abortion law, states that an abortion is never unlawful if "the risk of serious impairment to the physical or mental health of the pregnant woman" must be averted "and the risk cannot be averted by any other reasonable means."

The method of feticide: lethal injection in the womb

Late abortions, however, are very rare. In 2023 , 106,000 pregnancies were terminated in Germany. One-third of these were terminated five to six weeks after fertilization, another third seven to eight weeks after fertilization, and most of the remaining abortions occurred before the end of the twelfth week. Only three percent of all abortions were performed after the end of the third month.

Very few abortions occur after the 20th week of pregnancy. At that point, the developing child must be killed in the womb with an injection. This is called feticide. The woman must then give birth to the dead child.

An article in the journal Die Gynäkologie describes the method: "In this procedure, potassium chloride, digoxin, or xylocaine is administered to the unborn child through an ultrasound-guided intracardiac puncture. This ensures that a stillborn child is born after fetal cardiac asystole." This means that the medication causes the child to die of a cardiac arrest. The method is also used when a woman is expecting twins or multiple births, but one of the unborn children is seriously ill. In this case, feticide is intended to ensure that the other children have a better chance of survival.

Another scientific article from 2023 describes the legal procedure. The time of fetal death must be documented by ultrasound. On the death certificate, which must be completed for every child weighing at least 500 grams, the time of birth and the time of death are "treated identically." The cause of death is recorded as "not natural as a result of 'premature induction of labor as part of a late abortion pursuant to Section 218a Paragraph 2'." The name of the physician who determined the medical necessity of the abortion is also entered.

Such a late abortion places an enormous psychological burden on pregnant women, their families, and medical staff. Women who do not terminate a pregnancy early in the vast majority of cases still desire the child or children and now have to witness their death. In 2024 , 720 feticides were performed in Germany, plus 35 feticides in multiple pregnancies.

This is how abortion law should be changed

Frauke Brosius-Gersdorf supported a legislative initiative by members of the SPD, the Greens, and the Left Party, whose primary goal was to liberalize abortions in the first trimester of pregnancy by removing them from criminal law. Currently, abortions up to the end of the twelfth week are illegal, but under certain conditions—the woman seeks counseling and then waits three days—they are exempt from punishment. A highly controversial proposal was that the mandatory reflection period should be abolished and that counseling should no longer focus on protecting unborn life. The bill failed to gain a majority in the last Bundestag and will not gain a majority in the current Bundestag.

It is conceivable that Frauke Brosius-Gersdorf's view that full human dignity only begins at birth could impact other debates surrounding pregnancy, birth, and the treatment of unborn life. Even though she is unlikely to be the only lawyer to hold this interpretation, this position is likely to remain highly controversial in society.