Kills abortion

BGH on the Berlin twin case: It was manslaughter, not an abortion

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When twins were born, one of the babies suffered severe brain damage but was viable. In consultation with the mother, the doctors killed this. There can be no question of termination of pregnancy without punishment, according to the BGH.

The killing of a viable baby during or after the birth is a criminal homicide and not a punishable termination of pregnancy. This was confirmed by the Federal Court of Justice (BGH) in a decision published on Monday (11.11.2020, Az. 5 StR 256/20).

In 2010, a woman was pregnant with twins. Complications occurred during the pregnancy and one twin suffered severe brain damage, but the other developed largely normally. After the mother had sought advice, the indication for a punishable termination of pregnancy was made. However, since the twins were involved and the termination should only be carried out with regard to one twin, there were considerable risks for the other twin.

A medical solution that deviates from the usual procedure

At the time of the impending birth, this type of intervention was therefore only carried out by very few specialized clinics. The mother wanted to have the operation carried out anyway, but did not feel that she was being well looked after in the special clinic she had visited. So she turned to the senior physician at another obstetric clinic.

The then common procedure for selective termination was not offered in this clinic. Instead, the mother, together with the senior doctor and the head of the clinic, developed the plan to deliver the healthy child by means of a caesarean section and then to kill the twin with the damaged brain.

When the mother-to-be went into labor, the doctors followed their plan and administered a potassium chloride solution to the damaged but viable twin after they had removed the healthy twin from the womb. Years after the delivery, the public prosecutor's office became aware of the incident through an anonymous report.

Too late to be considered an abortion

The Berlin Regional Court (LG), which was initially involved in the case (ruling of November 19, 2019, Az. (532 Ks) 234 Js 87/14 (7/16)) had convicted the doctor of joint manslaughter. This has now been confirmed by the Leipzig-based 5th Criminal Senate of the BGH. The abortion rules would only begin until the beginning of the birth. In the case of delivery by caesarean section, the birth begins with the opening of the uterus, if the child is to be separated from the womb with it. In the opinion of the BGH, this applies regardless of whether one or more children are born. The killing of the second twin after the delivery of the first twin took place after the start of the birth, and an abortion with no punishment was therefore ruled out.

The doctor had invoked such a defense in their defense. However, the presiding judge made it very clear: "Even field, forest and meadow doctors know that it is forbidden to inject a child to death in the open womb." The present case was the unacceptable "sorting out of a sick child".

The BGH only lifted the amount of the penalties imposed by the LG. For example, the regional court accused the accused doctor and the accused of having planned the crime and not committed it in an emergency. According to the BGH, this aspect is not a permissible reason for complicating a medical operation. While the guilty verdict for manslaughter is final, the amount of the penalty has to be renegotiated again.

ast / LTO editorial team

with materials from the dpa