German Law on Having Babies

Last night, I received this e-mail:

pregnant affairA married but separated woman asked if German law allows her husband to have babies with another woman while they aren’t yet divorced.

Because this question comes up regularly, let me answer it once and for all:

1) German law doesn’t “allow” husbands to have babies because

(a) no one needs statutory permission, an official permit, a license, a certificate or anything else to have babies. It just happens when a man and a woman really, really like each other and begin to hold hands and do other naughty stuff (don’t ask for details because I am not an expert on reproduction);

(b) men can’t have babies (I know that much).

2) Therefore, your question really means either (a) Is there any punishment for your husband? (b) Is there any punishment for the other woman? (c) Will the court try to abort the pregnancy? (d) Do you have any other legal remedy that a court could impose on any of the other three persons involved (husband, other woman, child)?

3) Regarding your husband and the other woman, German law has in § 60 of the Criminal Code incorporated the old Roman law concept of poena naturalis. This means that a culprit does not deserve punishment by a court if he/she already heaped enough punishment or negative consequences on him/her through the deed that he/she committed.

Leaving aside the fact that no crime has been committed at all because your husband and the other woman are free people in a free country, they might end up having a baby. I would argue that this is not only punishment enough, but indeed a much more severe and long-term punishment than any court could mete out. Their lives will be ruined for the next 20 years. You may gain satisfaction from this.

4) You could try to ask the court to force the other woman to have an abortion, but I don’t think this would be successful, for the following reasons:

(a) I am afraid it might be considered a bit cruel and a violation of the other woman’s right to bodily integrity, a family life and human dignity, all protected under the German Constitution.

(b) It would in a way also be a punishment of the (unborn) child, although none of this is his/her fault.

(c) It’s not the Middle Ages anymore, but 2015.

(d) Why would it be any of your business if two other human beings have a baby together?

5) Similar arguments would apply if you were to seek a court order for the killing of the baby after it will have been born.

6) If you are harboring thoughts of requesting the court to order your husband to abandon the other woman, any potential child, to return to you and to love you again and/or to apologize to you, I refer you to a similar case and my answer thereto.

(By the way, if you are contemplating contacting me for legal advice, don’t be put off by me publishing some of these e-mails from time to time. You can easily avoid this fate by paying me for giving advice instead of expecting me to spend my weekend dishing out free advice. Weird concept, I know.)

About Andreas Moser

Travelling the world and writing about it. I have degrees in law and philosophy, but I'd much rather be a journalist, a spy or a hobo.
This entry was posted in Family Law, German Law, Germany, Law and tagged . Bookmark the permalink.

22 Responses to German Law on Having Babies

  1. Sukanya Ramanujan says:

    That’s setting it out clearly once and for all! LOL

    • I sure hope so.
      While I am certain that I will still get similar e-mails, now I can make my life easier by pointing to this elaborate piece of legal reasoning.

      • Sukanya Ramanujan says:

        The emails certainly won’t stop- people will always think that their case is different :)

      • True.
        And most of them don’t even bother to read if I have already answered a similar/identical case before.

  2. Anthony Rollins says:

    Germanistan?

  3. vidavidav says:

    To the poor asking lady. What has happened to you from the soul perspective is this man betrayed you. That answers the (d). We think that we should blame the perpetrator. The truth is that we received betrayal wound as small kids. This is sadly the natures way to heal old wound is to attract the same type of the person and reenact the betrayal situation. This is exactly what happened to you. You seek law for justice. As you see from Andreas answer, law can´t help you. And I am sure, the way Andreas answer sound to you, it is reliving another betrayal situation. And it will repeat and repeat until you dig in your childhood, remember the event or sequence of situations that caused your early betrayal trauma, relive and refeel all of it now, as an adult and process it in you as a grown up lady. It is call reintegrating. And then if processed fully with no residue you will have no subconsious need to reenact the betrayal trauma to heal it. And your betrayals will stop. Best of luck, girl. I feel for you as I am now processing my betrayal trauma.

    • This is esoteric bullshit, sorry if I have to say it so harshly.

      This is a case of betrayal not because of some alleged childhood trauma but because wife and husband had a contract-like relationship in which fidelity was one of the explicit or implicit components. This part of the contract was breached. That’s a current and actual betrayal.

      The law doesn’t provide remedies here, but thinking like a lawyer still is more helpful in analyzing such situations than resorting to psycho-babble.

      • vidavidav says:

        Andreas, sorry to disappoint you. The psyches need to reienact childhood trauma is a scientific fact and no psycho babble. But in a free world you are free to believe whatever you need ;) The proof in case you interested ;) : http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3330499/

      • It’s not a fact that EVERYONE has a childhood trauma and we don’t know the lady who asked the question.

        Also, it sounds too much like blaming the victim. As I pointed out, there was a current case of betrayal which has nothing to do with anything that happened in anyone’s childhood. If a husband leaves the wife for another woman and the wife did never have a childhood trauma, she would still feel betrayed. And right fully so, for the “contract” argument I pointed out.

      • vidavidav says:

        It is in fact two things. First yes, de facto ex husband did emotional damage to his separately living wife by having his girlfriend pregnant and his ex wife if not to blame for that. Regardless if he accepts the fact of causing her emotional damage or not. However another fact is that the woman picked THIS particular husband who already had specifications to hurt her in this way. Because her subconscious was seeking ways to relive betrayal in order to reintegrate the supressed part of her personality in her childhood. You would have known this if you would have read the link I sent you ;) But I know it is hard to read. Because it is a scientific article and not an easy stuff from a Cosmopolitan magazine ;) But you do not like psycho babble, so you did not get psycho babble from me :P

      • We don’t know at all if the husband had any specification or if something happened after they got married that none of them could foresee. We should remember that we have heard only one side of the story, and even that with not many details.

        I can’t take it seriously if someone tries to psycho-analyze a person whom they don’t know. That’s Cosmopolitan level indeed.

      • vidavidav says:

        And yes, you are right, not everyone has a childhood trauma. However many are just unaware of their trauma. And traumatizing events, especially a sequence or extreem pain during them might point to forgotten childhood trauma.

      • “Might,” of course.

  4. Wow reading the comments about her looking for a husband to relive the trauma? O.o Thats crazy. Maybe some people do but I for instance got cheated on and left. I certainly did not pick him or want him so I could relive any sort of trauma. However when it all came to a head and it was apparent trust is breached and the relationship was broken I told him and his new chick have a nice life. Hope he treats you as good as he treated me. Sadly she had the babies pre mature and they died he left her for another girl.(and I do not gloat over such facts as its a truly terrible thing disregarding the circumstances of the cheating) Only reason why he stuck around her was the obligatory feeling of kids once that no longer the case it was adios and all those lovey words and promises were empty with you as with the wife I left you for. Even had they been born healthy shes got 2-3 kids with different fathers already and he has a child from a previous relationship. This should have been a red flag but I try to believe better in people so oh well my bad for trusting him. Now maybe she seen it was not a good idea seducing a married man. If he can cheat for you he can cheat on you.Though she strikes me as one that never truly learns from her mistakes. I moved on, remarried someone wonderful without baggage and tons of female friends and exes with babys lurking about, and well the ex and his mistress both go on the cycle of living their broken unhappy lives full of drama and problems. I say I came out of it a bit better and handled it. When someone cheats and wants out I certainly wouldn’t go to the court asking they make the person stick around. The love is gone and its time to move on and let sleeping dogs lie.

  5. renxkyoko says:

    Here in the US, the government will garnish his wages she will also , get the house, maybe the car, and the cheating husband will get the family dog. Besides those, thehusband has to support the children until they turn 18, and support the wife until she remarries. . Statistics show that during recession years, divorce rate drops too. We have a family friend whose husband cheated. She got the huge house, and a huge alimony. The husband and his new lover now live in a small apartment. In South Carolina there’s an 19th century law that allows the wife to also sue the other woman for emotional damages. The wife won, also, and now that womans wages are also garnished monthly .. ^.^/

  6. vidavidav says:

    I know some things in life are different as they seem. Earth seems flat when we walk on it but is in fact round. If a couple wants to conceive a child, the logic seems to dictate to make love more often . But if love is constantly made in the intervals less than 48 hours or so, the sperm does not have time to mature and the stress of wanting to get pregnant makes the chances also less. The key is the opposite, it is to relax and make love whenever two people want that.

    I fully understand it looks quite illogical what I told you. But it does not change the way it is. And I am OK with the fact that you think it is crazy. We are all free to believe whatever we want ;) None of us would get burnt even if we thing the earth is flat ;)

    • 1) Earth doesn’t seem flat if one travels around enough. When you are high on a mountain, you can see the round shape of the horizon. I first saw this from Ayers Rock in Australia, which is not even that high. You can also observe it on the ocean.

      2) I can’t comment on the making of babies because I have no experience with that.

  7. Anonymous says:

    hi Andrea, i am a togolese and i am in germany on a tourist visa which i have overstayed but i am due deliver a baby in few days time, does my child get the german passport even though i have overstayed? and what happens to me if i want to go back to my country after having my baby?

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