To some it is too Catholic, to others too un-Catholic. For some, it champions the right to life of the unborn too much, for others too little. For some, it neglects women’s right to self-determination by exerting pressure on them not to have an abortion; for others, it renders women’s right to self-determination absolute, leaving the decision to them whether the unborn child will live or die. And for the German bishops it is an association outside the Catholic Church. Who or what is this? It is Donum Vitae (Gift of Life). Why was it founded twenty years ago by Catholics in reaction to the revision of StrafGesetzbuch (StGB) § 218?Footnote 1 What does it stand for? Why do opinions about this association still differ to such an extent today?
In addressing these questions both theologically and legally, I do so in honorable remembrance of and in conversation with Ernst-Wolfgang Böckenförde. Böckenförde was involved in the issues giving rise to Donum Vitae in several respects. For one, as a judge at the Federal Constitutional Court, he had played a decisive role in the revision of StGB § 218 through the 1993 ruling.Footnote 2 Additionally, he was a founding member of the federal association Donum Vitae e.V. Furthermore, he was a Catholic convinced of the need for and committed to a credible implementation of the Christian message in practice. His example prompts me to present the following reflections, also out of personal concern and in connection with my profession: I co-founded the regional association Donum Vitae e.V. Bavaria, and because my profession as a theological researcher and, in particular, as an ecclesiastical lawyer, I advocate for a legitimate sphere of freedom for people within the church.
Obligation to Counsel and Waiver of Penalty for Abortion in German Criminal Law since 1995
Abortion, or termination of pregnancy, is considered by law to be a serious crime, both in the church and in Germany. Accordingly, the church and German legal system threaten severe punishments for it. However, it was also recognized in the 1960s that an abortion is most of the time only performed as a last resort in a conflict or crisis situation.Footnote 3 In order to show the pregnant woman in such a situation that there are other ways out of this crisis, the idea of introducing compulsory pregnancy conflict counseling (Schwangerschaftskonfliktberatung) for the woman seeking an abortion was conceived in Germany at the end of the 1960s. This basic idea of so-called compulsory counseling has been in effect in the German penal law of abortion ever since.
Compulsory Counseling in the Interest of the Unborn Child as a Partial Substitute for Punishment
The new provisions of StGB § 218, which have been in force since 1995, stipulate that the threat of imprisonment for up to three years (which can be replaced with a fine) for having an abortion is withdrawn in the event that (1) prior conflict counseling has taken place in accordance with StGB § 219, (2) the abortion takes place within the first twelve weeks of pregnancy, and (3) the abortion is performed by a physician. If these three conditions are fulfilled, the abortion becomes exempt from punishment because it does not meet the criteria of StGB § 218.Footnote 4 Because, in this case, pregnancy conflict counseling has been substituted for the threat of punishment, it must have the same goal as the threat of punishment: protecting the unborn child. Instead of a threat of punishment, the task of protecting the unborn child is carried out through a duty to advise. This can only be achieved under two conditions.
First, counseling must be mandatory, even though mandatory counseling is not the ideal condition for counseling. If it were voluntary, the legislation would have violated the protection of the child’s life in favor of the representation of the woman’s interests. Therefore, compulsory counseling was the necessary compromise to be just—to the extent possible—to both main stakeholders, mother and child. That counseling grants immunity from punishment under certain conditions takes into account the pregnant woman’s situation of conflict. The fact that this counseling is not voluntary on the part of the pregnant woman, but compulsory, takes into account the unborn child’s right to protection, which would not be safeguarded if counseling were voluntary, for then getting counseling would be up to the pregnant woman’s discretion. However, although legally prescribed, the counseling may not in any way exert pressure on the pregnant woman in order to achieve a certain result.
Second, the counseling must pursue the same goal as the threat of punishment: the protection of the unborn child. “Put another way: it is counseling in favor of the unborn child that, in the first place, becomes the prerequisite for abortions to be exempted from punishment.”Footnote 5 Therefore, it is the task of this counseling to stand up for the right to life of the unborn child and to provide aid for the continuation of the pregnancy.
Goal Orientation and Open-Endedness of Counseling
Conversely, the definition of the content or goal of the consultation does not (and cannot) say anything about the outcome of the consultation: every consultation is by definition open-ended. In this respect, the goal of counseling (the protection of the unborn child) and the open-endedness of counseling (respecting the right of the woman to make a decision) create an inherent tension in all pregnancy crisis counseling. In 1993, the Federal Constitutional Court aptly described this tension:
The counseling in the pregnancy conflict requires the goal orientation towards the protection of the unborn life. A mere informative counseling, which does not take up the concrete pregnancy conflict or attempt to make it the subject of a face-to-face conversation, nor strive to provide concrete help with regard to this conflict, would fail the woman and would miss its mission. The counsellors must be guided by the effort to encourage the woman to continue her pregnancy and to open up perspectives for a life with the child.
Such encouragement does not contradict the conditions of effectiveness of counseling as long as it is based on the personal freedom of those seeking advice, respects their responsibility and is accordingly conducted as open-ended counseling. As a process of personal communication, open-ended counseling in no way excludes the possibility that normative ideas and values conveyed by the counselor may flow into it…. In view of this, counseling can fail not only through manipulation and indoctrination, but also through an uninvolved approach that leaves the woman alone with her conflict and thus ultimately denies her sympathetic advice. Counseling that is oriented only to the interests of the pregnant woman as presented in the counseling session, without taking up the existing conflict, does not do justice to the mission of counseling. On the other hand, an influence aimed at creating feelings of guilt and lecturing in this way would hinder the woman’s willingness to open up to counseling and become aware of her ambivalence. Counseling should encourage, not intimidate; arouse understanding, not lecture; strengthen the woman’s responsibility, not patronize her.Footnote 6
Twenty years later, Böckenförde, who was one of the judges, was quoted as summarizing the decisive basis of this conception of pregnancy conflict counseling as follows: “The judgment starts from the existential bond between mother and child—our keyword was ‘unity in duality.’ This tension and the conflicts it contains must be perceived and processed. There are no ‘smooth’ solutions here.”Footnote 7
Ultimate Responsibility of the Mother and the Fundamental Right to Life of the Unborn Child
The criminal legislation on abortion in force in Germany since 1995—with its combination of threat of punishment and substitution of punishment, of protection through punishment or counseling as a substitute for punishment—is unique in the whole of Europe. The law is unique both in its basic approach and in its concrete implementation, at the level of the text and at the level of process and action. From beginning to end, it is based on the concern not with doing justice to either the unborn child or the pregnant woman, but with doing justice—as far as possible—to both parties. Thus, both are given a voice, the interests of both are taken seriously, and the mother is not denied ultimate responsibility, nor is the unborn child denied the basic right to life.
This justice for both parties approach is expressed at the textual level by the combination of the fundamental threat of punishment and the concrete waiver of punishment through counseling; at the process level by the juxtaposition of the obligation and content-related goal-directedness of counseling with the simultaneous openness of the results of counseling; and at the action level by a diverse offer of support for the continuation of the pregnancy conveyed in counseling while at the same time adhering to the fundamental threat of punishment as the last possibility for protecting the child’s right to life. In this sense, Böckenförde also emphasized, with respect to the Federal Constitutional Court Ruling of 1993, “It is very important how seriously counseling is taken. The ruling is clear: counseling cannot and must not replace or anticipate the decision, but it must be aimed at encouraging the woman to continue the pregnancy.”Footnote 8
The Counseling Service of the Church
It is perhaps the greatest conflict a woman can experience: She is unintentionally pregnant and does not know whether to carry the child to term or not. She has to make the most difficult decision there is in life. Those who have been involved in a situation of an unwanted pregnancy will confirm this. Abortion is not usually perpetrated out of recklessness or malice, but is, in most cases, the remedy to address an unintended pregnancy for which there seems to be no remedy other than abortion. From this realization, the secular legislature in Germany drew the conclusion as early as the 1960s that in order to avoid abortions in the future, they should not simply threaten punishment as a deterrent, but should also positively present ways and means of continuing the pregnancy. For this purpose, compulsory counseling of pregnant women was introduced. Pregnancy conflict counseling has been firmly anchored in German criminal law since 1976.
Denominational Counseling Services within the Framework of the State System
Because the compulsory counseling prescribed by the secular legislation represents an important service both for the pregnant woman in distress and for the unborn child, the Catholic Church decided to support this counseling prescribed by secular criminal law and to offer, within the framework of the Catholic social welfare organizations Caritas and the Sozialdienst katholischer Frauen (Social Service of Catholic Women), what is called “denominational” counseling service that can be used by every woman—whether Catholic or not—and that complies with the requirements of secular criminal law. Within the jurisdiction of the German Bishops’ Conference, some 270 denominationally Catholic counseling centers have been established over the course of time in which this counseling service has been offered. (There are also other counseling programs all over the country—Protestant, secular, and otherwise).
Withdrawal of the Denominational Catholic Counseling Centers Due to New Legal Status of Compulsory Counseling
Following the 1995 revision of the abortion laws, however, the denominationally Catholic counseling centers of Caritas and Sozialdienst katholischer Frauen withdrew from the state system of pregnancy conflict counseling by no longer issuing written confirmation that counseling had taken place that was both goal-oriented (protecting the unborn child’s right to life) and open-ended (preserving the woman’s autonomy in decision making). The reason for this withdrawal was the changed status of mandatory counseling in the revised version of StGB § 218.
Pregnancy conflict counseling had the status of a subsidiary regulation, not a statutory provision, in the 1976 Criminal Code:Footnote 9 the regulation modified the threat of punishment for abortion if the counseling requirment was met. With the 1995 amendments to the StGB §§ 218 and 219, pregnancy conflict counseling became a statutory component of the criminal law as one of three conditions (counseling, professional medical procedure, and three-month period) for remaining free of punishment, despite having carried out an abortion. Thus, the obligation to provide counseling is integrated into the overall statutory framework and, to that extent, is given much greater weight. The concrete consequence of this is that an abortion performed by circumventing counseling is no longer merely a violation of a secondary regulation, but makes the abortion punishable for all parties involved. However, conflict counseling could receive this new status under criminal law only because its content had also been completely redefined. Whereas counseling in the 1976 Criminal Code was conceived merely as providing information about means of continuing the pregnancy, it has now been transformed into counseling in favor of the unborn child.Footnote 10 The two decisive keywords in this new conception of counseling are goal-oriented, relative to the right to life of the unborn child, and open-ended, as the determination of the content or goal of counseling by definition does not and cannot say anything about the outcome of the counseling.
Urgent Request of the Pope to the German Bishops as Trigger for the Withdrawal
The trigger for the withdrawal of the German church leadership from pregnancy conflict counseling was a letter from Pope John Paul II in 1998. Almost all German diocesan bishops had decided to continue issuing confirmation of counseling in the Caritas and Sozialdienst katholischer Frauen counseling centers, despite the changed status of conflict counseling in the wake of the 1995 amendments. However, in 1998, Pope John Paul II wrote a letter to the German bishops urging them to ensure that counseling vouchers would no longer be issued by “ecclesiastical or church-affiliated counseling centers.”Footnote 11 The pope’s advice was given because the counseling certificates are ambiguous. Although they document counseling in favor of the right to life of the unborn child, together with other conditions, they can lead to impunity for an act of abortion. This request to stop issuing certificates of counseling was tantamount to suggesting a withdrawal of the church as an institution from the state system of pregnancy conflict counseling. According to the pope, ceasing to issue certificates would make the ecclesiastical witness to the protection of the unborn child more credible because it is more decisive and not obscured by any ambiguity.
The German bishops complied with this request, albeit with some delay. Since spring 2002, no counseling center affiliated with the Catholic Church has issued the counseling certificates.Footnote 12 This is intended to prevent the institution of the Catholic Church from being associated in any way with the killing of unborn children, which is exempt from punishment under StGB § 218a. Accordingly, the guidelines that the German bishops’ conference issued following the withdrawal in 2000 for the pregnancy counseling centers officially sponsored by the Catholic Church explicitly emphasize, “After a year-long process of tussling over the Church’s counseling service within the framework of state laws, the German bishops, not least on the instructions of Pope John Paul II, have decided to continue to provide pregnancy counseling intensively, but no longer to issue counseling certificates, which are one of the prerequisites for a penalty-free abortion.”Footnote 13
The Counseling Service in the Church at Donum Vitae
With the decision to cease issuing certificates of pregnancy conflict counseling in the counseling centers of Caritas and Sozialdienst katholischer Frauen, the German bishops withdrew from the system of state pregnancy conflict counseling. Since then, a number of Catholics have sought to close the resulting gap and are working to ensure that there is still a denominationally Catholic counseling service providing the certification of the woman’s participation in the state conflict counseling system. For as much as they agree with Pope John Paul II on the fundamental point that action must be taken against abortion because abortion is the killing of an unborn child and therefore a criminal offense, they are just as firmly convinced, contra the pope, that only with the prospect of obtaining a counseling certificate will many of the women who are already willing or have decided to have an abortion still choose to be counseled by centers affiliated with the Catholic Church. And that, in turn, is a key opportunity to come into personal contact with these women and to work with them to find a solution other than abortion. Taking advantage of this opportunity is an important commitment for these Catholics to ensure the right to life of the unborn human being. For this reason, they have decided to create an association to effectively implement their conviction: Donum Vitae.
Donum Vitae: Association of Catholics with a Catholic Focus on Counseling and Counseling Certification
In 1999, a group of lay Catholics founded Donum Vitae zur Förderung des Schutzes des menschlichen Lebens e.V. (Donum Vitae for the Promotion of the Protection of Human Life, registered association), an association constituted under secular law. Donum Vitae sees itself as an association of Catholics that is open to Christians of other denominations and to people who are committed to the protection of unborn life and the dignity of women, men, and children based of the Christian concept that humans beings are created in the image of God.
The Central Committee of German Catholics was the driving force behind the founding of Donum Vitae.Footnote 14 It was within the committee that the idea of founding the association was born, the association’s statutes were drafted, and the delegates of the associations and diocesan councils, as well as individual personalities, were won over as advocates for the project. Böckenförde was one of the important supporters in this phase. He was significantly involved in the preparations for the founding of the association and was also one of the founding members. This concerted action of laypeople can be seen as an expression of the apostolate of the laity in the sense of the Second Vatican Council and is unparalleled in church history. (In the past, the laity could work only for the church’s mission of salvation (that is, as an apostolate) in direct dependence on the clergy. Only at the Second Vatican Council was it established that, by virtue of their baptism, they are called by Christ himself to participate directly in the salvific mission of the church.Footnote 15) As of 2022, Donum Vitae is represented in more than two-hundred locations in Germany; in addition to the federal association, there are twelve state associations and more than sixty regional or local associations.Footnote 16 Thus Donum Vitae is a significant phenomenon, and it is even said that through Donum Vitae “the diocesan bishops and with them the pope … [have] in fact lost part of their symbolic and real power over the ‘Catholic.’”Footnote 17
Church and Church-Affiliated Counseling Centers Acting in the Name of or on Behalf of the Church
With the founding of Donum Vitae, the question arises as to how the commitment of Catholics in and for this association is to be evaluated. After all, this association continues what Pope John Paul II had discouraged for the institution of the church in his urgent request to the German bishops. Does the association act ecclesiastically or extra-ecclesiastically? To put it bluntly: Is the counseling of the Donum Vitae association Catholic in character, in that its content is oriented toward the doctrine of the faith of the Catholic Church, but extra-ecclesiastical because it does not comply with the pope’s request to cease issuing counseling certificates? The fact that official church parlance refers to the counseling centers of Caritas and Sozialdienst katholischer Frauen as “church counseling centers” but to Donum Vitae as merely a “counseling center” because it is operating in disobedience to the papal request suggests that Donum Vitae is church-affiliated, but no longer considered ecclesiastical. But a close analysis of the expression “ecclesiastical and church-affiliated counseling centers,” a phrase used by the German Bishops’ Conference, shows that this nomenclature is theologically and legally untenable.
When the counseling centers of Caritas and Sozialdienst katholischer Frauen are referred to as “church counseling centers,” it is meant to express that they work in the name or on behalf of the Catholic Church and are therefore also considered counseling centers under the formal sponsorship of the institutional church. Following canon law, only those who have a formal ecclesiastical mission from the competent ecclesiastical authority can work in the name of or on behalf of the Catholic Church. The ecclesiastical authority responsible for the Caritas and Sozialdienst katholischer Frauen counseling centers is the respective diocesan bishop in the case of a diocesan association, and the German Bishops’ Conference in the case of a federal association. For this reason, these counseling centers are often referred to as “episcopally supported” or “episcopal” counseling centers.
The designations “church” and “episcopal” counseling centers are not correct, however. Strictly speaking, the counseling centers of Caritas and Sozialdienst katholischer Frauen are not “ecclesiastical” but “church affiliated” counseling centers. The ecclesiastical mission, which is necessary in order to work in the name of or on behalf of the Catholic Church, can be given in two ways: directly and indirectly. It is granted directly if the counseling center is an institution of the church and indirectly if the counseling center is officially recognized by the church authority. If the ecclesiastical mission is given directly, it is an “ecclesiastical counseling center”; if it is given indirectly, it is merely a “counseling center affiliated with the church.” In the area overseen by the German Bishops’ Conference, there are so far no “ecclesiastical,” but only “church-affiliated counseling centers” such as Caritas and Sozialdienst katholischer Frauen.
Counseling Centers in the Church, in which One Does Not Act in the Name or on Behalf of the Church, but by Virtue of One’s Own Baptismal Responsibility
The counseling provided by Donum Vitae, which is confirmed with the counseling certificate provided for under secular criminal law, understands itself to be denominationally Catholic, targeted at the right to life of the unborn child, and open-ended in the counseling process. The mission of the counseling is grounded in Christian responsibility, but not with official church recognition—that is to say, not in the name or on behalf of the institutional church. The fact that the counseling centers of Donum Vitae are not officially recognized by the church and therefore do not act in the name or on behalf of the church does not simply maneuver these counseling centers into the nonecclesiastical or extra-ecclesiastical realm. They remain counseling centers within the church, and they are so because the members of the association act by virtue of their mission, to which they are called through baptism and confirmation, and are thus active by virtue of their Christian responsibility, which they exercise in their own names. Consequently, both Donum Vitae and its counseling centers are to be characterized neither as “ecclesiastical” nor as “affiliated to the church,” but they are counseling centers within the Catholic Church.
As an association in the church, Donum Vitae is classified under ecclesiastical association law as a free association “for the purposes of caritas” and “for the promotion of the Christian vocation” in the field of prenatal life.Footnote 18 Donum Vitae is thus organized in the same way as are the majority of associations and societies of the Catholic Church: according to secular law as an association registered in German civil law and according to ecclesiastical law as a “free association of Catholics with ecclesiastical objectives,” namely caritas, piety, and promotion of the Christian vocation in the world (c.215) as an ecclesiastical but noncanonical association.Footnote 19
The German Bishops’ Classification of Donum Vitae as an Association “External to” the Church
For as long as Donum Vitaen has existed, there has been a discussion among Catholics in Rome and within the German Bishops’ Conference—at times heated and emotionally charged—as to whether the laity should be allowed to continue what the German bishops once did but stopped doing at the urgent request of Pope John Paul II: to commission counseling centers to offer denominationally Catholic counseling in the state system of pregnancy conflict counseling. Probably with the concern to end this discussion, the German bishops declared in 2006:
The private association Donum Vitae is an association outside the Catholic Church. … Persons who are in ecclesiastical service are prohibited from participating in Donum Vitae e.V. … The Permanent Council [of the German Bishops’ Conference] requests the faithful who assume responsibility in the church councils and participation bodies as well as in the church associations and organizations to refrain from leading participation in Donum Vitae e.V. for the purpose of greater clarity of the ecclesiastical testimony and thus to better bring out and respect the differences between Donum Vitae e.V. and positions of the church.Footnote 20
The Impossibility of Catholics Acting “External to” the Church
The classification of the association Donum Vitae as an association “external to” the church is, however, theologically and legally untenable. This follows not only from the four basic types of associations in the ecclesiastical law,Footnote 21 but even more fundamentally from the ecclesiastical doctrine of the inalienable imprint that baptism confers. Because of this inalienable imprint, the following principle has applied in the Catholic Church since time immemorial: Once a Catholic, always a Catholic. Or, to put it negatively: Whoever is accepted into the Catholic Church by virtue of baptism can neither be removed from it nor remove themself from it. This principle is not annulled by the penalty of excommunication or by the state-notarized departure from the church.Footnote 22 For both excommunication and leaving the church do not cause the break or departure from communion (Aus-Gemeinschaftung) of a member of the church, but only the restriction of their legal status within the community of the church. It follows that whoever, willingly or unwillingly, cannot fall out of the fellowship of the church also cannot exercise their vocation by virtue of baptism, willingly or unwillingly, outside the church, but always only within the church—no matter whether they exercise this vocation by virtue of baptism as an individual, as a group of individuals, or gathered in an association. Therefore, it should be noted that an association founded by Catholics, invoking their baptismal mission and baptismal responsibility for the charitable purpose of protecting unborn life and “for the promotion of the Christian vocation in the world”Footnote 23 in this area of prenatal life, cannot therefore be placed outside the church by anyone. The fact that the association structures are designed as a “registered association” according to secular law does not change this.
Donum Vitae: An Association Close to People in Multiple Ways
Donum Vitae was founded more than twenty years ago with the aim of keeping a central element of our Catholic faith present in society, namely, to be and remain close to people in need, even in tough situations. The foundation of this association is unique in church history. Until now, in Catholicism’s two-thousand-year history, the laity had never dared to implement what they were convinced of, even when the church leadership—in this case, Pope John Paul II and the German bishops—were against it. In 1999, however, the laity moved forward courageously, decisively, and strategically. When the German bishops decided in 1999 to withdraw from the state system of pregnancy counseling, lay people launched Donum Vitae to continue, in a nonofficial capacity of the church, what the bishops, as officials of the Catholic Church church, were giving up: the offer of a Catholic pregnancy conflict counseling that seeks the conversation especially with women who are determined to have an abortion, in order to explore with them all the ways that lead to a solution other than abortion, without patronizing or condemning the woman. This is a more more credible stance for members of Donum Vitae than if one were to abandon the activism in this area of life only in order to avoid the impression that one might be willing to relinquish the protection of the child’s life.
The goal of Donum Vitae has therefore always been to be close to the women, to win them over for the unborn child, but at the same time to let them feel that, no matter what they decide, they will not be condemned or even judged, but will remain valued and supported. Treating people as inherently worthy of value and support is an originally Catholic concern, a matter close to the heart of the Catholic church for its existence. Therefore, despite all assertions to the contrary, it must be emphasized that the association Donum Vitae does not violate any ecclesiastical doctrine or any ecclesiastical legal norm. It is an association in the church, not an association supported by the church hierarchy, but an ecclesiastical association in the sense of a free association of Catholics in the church for the promotion of the Christian vocation in the world as provided for in the Code of the Catholic Church.Footnote 24 How could it be otherwise if Catholics, out of their Christian responsibility, found an association in order to pursue—in ecumenical openness—an original church concern?
To avoid being misunderstood, Donum Vitae does not strive for episcopal, that is, official church sponsorship of its counseling centers. However, those responsible for this association want the German bishops to admit not only behind closed doors, but also publicly: Donum Vitae and the bishops have always agreed in principle that abortion is killing. But in order to prevent as many abortions as possible, the bishops and Donum Vitae have taken different paths. The bishops stand for the unambiguous witness of the institution of the church, but they are glad that the laity remain close to the concrete human being in emergency situations such as the pregnancy conflict, and that the laity does so with a commitment to both the unborn child and the pregnant mother, and precisely through this double advocacy accept the potential threat that they may fall short in either fully respecting the rights of the woman or protecting the unborn child. After all, what would the unequivocal witness be if it remained only abstract and was left out precisely in the “battlefields of life,” to use Pope Francis’s apt formulation?Footnote 25
Donum Vitae has meanwhile written a great success story—even though the association needs to raise more than one million euros in donations every year, even with state funding. It has become a medium-sized company with hundreds of employees, run in the Christian spirit and by volunteers, active in many areas of life, well networked and highly respected in society. In addition to pregnancy conflict counseling—which is and remains the heart of its work—Donum Vitae also offers general pregnancy counseling. After the birth, the association helps and advises until the child is three years old. Donum Vitae also provides sex education in the schools; offers grief counseling when a child is too weak to live; advises on prenatal diagnostics and the unfulfilled desire to have a child (for example, due to infertility); helps and accompanies in confidential and anonymous birth, pregnancy, and escape from political conflict situations; offers online counseling; and is active in working with men and fathers. In other words, Donum Vitae tries to help where life and a successful life are at risk. Or to express it with a metaphor of Böckenförde’s: Donum Vitae is like a paramedic who intervenes to save livesFootnote 26—during counseling in pregnancy conflict and far beyond.
Acknowledgment
This essay was translated from German by Sadhana Senthilkumar.
