FAMILY PLANNING

Group 8

By Anne Birnbaum, Laura Sauer, Pia Baier, Syuan-Cing Huang, Su-Hsin Sun, Tai-Chen Hsiao.

Structure

Case presentation

What questions arise?

Topics that need to be considered

Person centered approach

Case

Anna T. is 23 years old and has Down syndrome. She lives with her parents and works in a facility for people with disabilities. Her mother is the Betreuerin (appointed by court) in the matters of property and health care, as well as authority matters – or her mother is the assistant (appointed by the court). Anna T. met 27-year-old Luis H. at her workplace. The two fell in love and have a relationship. Anna T’s mother is very worried that her daughter might get pregnant and then she would have to take care of the child. She wants to prevent pregnancy at all costs and wonders if sterilization or another contraceptive method is indicated as a precaution, or if she could stop contact between her daughter and her boyfriend altogether.

Anna T. and Luis H. say they want to have sex. They also want to live together and are considering marriage. Luis H. also has Down syndrome and lives in an assisted living. He has a professional Betreuer in the matters of property and health care, as well as authority issues – or he has an assistant.

Betreuerin/ Mom

Case presentation

NO Pregnancy!

Thus No Contact with him! Go for Sterilization!

Met in workplace,

want to have sex and marriage

Betreuer :

Property, health care, authority issues

Questions that arose in the beginning:

What do Anna und Luis want?

Are Anna and Luis capable or forming their will? Under what circumstance is the guardianship allowed?

Under which circumstances is a sterilization allowed? Can Anna be forced to take contraceptive methods? Do Anna and Luis need the agreement of their Betreuer to marry? To move in together?

Is there a contradiction between the mother of Anna as her mother and as her Betreuer?

Topics need to be considered

1.Partnership

a.Getting married

b.Blocking the contact between Anna and Luis

c.Living together

2.Sex

a.Sexual intercourse

b.Risk of Anna becoming pregnant

c.Sterilization, other contraceptive methods

Getting married

●Marriage and family shall be under the special protection of the state order (Article 6 Basic law state)

●Generally: There is no reservation of consent (Einwilligungsvorbehalt) for marriage (§ 1903 (2) No.

1 German Civil Code)

●A person who is incapable of contracting may not enter into a marriage (§ 1304 German Civil Code)

Anna is capable of acting

→This means that Anna and Luis could marry without restrictions if they wanted to.

●Note: In the area of matrimonial property law, the area of property care may be suitable

Sexual intercourse

●The right to sexual self-determination for people with disabilities is not specifically regulated in any law.

●It results from the general right to self-determination that’s anchored in the constitution and applies as for any other human being (Art. 1,2,3 Basic law state)

There is no legal basis for the Betreuer to prohibit sexual intercourse between Anna and Luis!

Risk of Anna becoming pregnant

●Getting pregnant and raising a baby has to be separated into two different parts; before and after childbirth.

●No legal right to forbid pregnancy.

●Check the capability of raising a child between the parents and take action

according to §§1666, 1666a Civil code if necessary → this however may result in

separation of the child from the parents (cf. LG Fulda Beschl. v. 17.3.2011 – 5 T 13/11, BeckRS 2013, 22698)

●Support measures can be put in place, such as parent-child facilities (§19 SGB VIII) or “accompanied parenthood” (cf. Mobile 2021)

Sterilization

§1905 Civil Code: Sterilization

The German law and the UN Convention on the Rights of Persons with Disabilities in general prohibit sterilisation against the will of the person concerned → Sterilization against free will is only allowed under specific and severe circumstances, e.g.

●Becoming pregnant may result in a possible danger to life and/or risk of serious impairment to the physical/mental health of the pregnant woman. (cf. Abs. 1 Nr.3 und 4)

●Conception isn't preventable by any other reasonable means (cf. Abs. 1 Nr. 5)

→sterilization is definitely not allowed in Anna and Luis´ case, especially because there are milder means to avert the pregnancy such as the contraceptive coil or three-month injection/pill.

(vgl. LG Fulda Beschl. v. 17.3.2011 – 5 T 13/11, BeckRS 2013, 22698)

Other contraceptive methods and abortion

§1904 Civil Code: approval of the guardianship court for medical measures

●So long as the measure corresponds to the will of the person being cared for (as determined in accordance with §1901a civil code) no consent by the guardianship court is required concerning contraceptives and abortion.

→ Both don't equate to potentially risky medical intervention (vgl. Schneider 2020: Rn. 37).

Other contraceptive methods and abortion

§1906a Civil Code: Approval of the guardianship court for compulsory medical measures to take place.

●Not only consent of the guardian but also of the guardianship court is required (vgl.

Schönke et. al. 2019: Rn. 38f.).

●Compulsory medical measures must be necessary to avert imminent significant harm

based on review literature, pregnancy is not to be assessed as a significant risk (vgl.

Hoffmann 2018: 104).

Anna or Luis can’t be forced to take any contraceptives or have an abortion against their will.

Guardianship

NO LEGAL CAPACITY

Anna’s mother is the Betreuerin (appointed by court) in the matters of

property, health care and authority matters.

●Anna’s situation is more likely to be “under assistance” , which is regulated in article 15-2 of Civil Code in Taiwan.

○A certain number of juridical acts without the approval of the assistant are not valid.

Blocking contact between Anna and Luis

●Personal freedom is one of the highest rights mentioned in Constitution.

●The Betreuer is NOT given the power to restrict the personal liberty of the person under assistance.

●So, Anna’s mother is of course not authorized to forbid the contact between Anna and Luis.

Sexual intercourse

●Having sex is not considered as a juridical act. Besides, it is not mentioned in any law or article 15-2 of the Civil Code as acts requiring consent of her Betreuerin.

●Therefore, Anna and Luis are supposed to have the right to have sex even under guardianship.

Risk of Anna becoming pregnant

●Becoming pregnant or giving birth are not considered as juridical acts. Also they aren’t mentioned in article 15-2 of the Civil Code as the acts requiring the consent of her Betreuerin.

●Therefore, the Betreuer doesn’t have the right to prohibit Anna from being pregnant.

●However, child-rearing and child custody might be issues that need to be discussed in Taiwan.

How can Anna T. and Luis H. be supported so that their wishes are fulfilled?

Person centered approach : Going deep into the case

If communication solves the problem, legal approaches are not needed. External help such as family counselors or consultation centers can be of help.

As for Taiwan:

External help aids with communication and information provision.

Communication & Information : Marriage

Make sure that

Anna understands the meaning of marriage.

Anna and her mother understand each other.

-the mentioned principles should be applied to both of them

They are provided with sufficient information.

-what support is given.

-cases of previous Down syndrome marriages.

Issues of pregnancy should be handled the same way

Pregnancy

Issues of pregnancy should be treated the same way： thorough communication, information provision

Same process regarding sterilization.

Instead of communicating, Anna’s mother tend to be manipulative.

which may deteriorate their relationship.