Sterilization Law in Germany
Statistical Survey Concerning Obligatory Sterilization in Germany
According to the official statistics of the German Ministry of Justice, 84,525 petitions for sterilization were made in the course of 1934 to the respective Courts. Men numbered 42,903 cases and women 41,622. That represents one for every 772 inhabitants. Up to 31 December, 1934, 64,466 cases were dealt with, i.e., 75% of the total number of petitions. Sterilization was ordered in 56,244 cases of which 28,286 were men and 27,958 women. Sterilization was refused in 3692 cases. The number of cases dealt with in other ways was 4563. Therefore, in 93.8% of the cases dealt with, sterilization was ordered to be carried out and in 6.2% it was refused.
An appeal against the judgment for the carrying out of sterilization was made in 8219 cases (14.6%). Up to the end of 1934, 5245 of these appeals were dealt with at the Courts with the result that the appeal was granted in 377 cases (7.2%) and refused in 4559 cases; a small number of cases were dealt with in other ways. For the sake of comparison it is worth noticing that in the U.S.A. for the period from 1905 until 1933 or 1934 there were about 16,000 cases of compulsory or authorized sterilization. (Cf. Deutsche Justiz, Rechtspflege and Rechtspolitik. Amtliches Blatt der deutschen Rechtipflege, Vol. 97, no. 21, Edition A, 24 May, 1935, pp. 780-782.)
From this short statistical survey it is clear that the law has been widely applied. The Catholic moral theologian is, therefore, bound to deal with the questions arising from such a situation.
It is not allowed to men or women to have themselves sterilized, because they are not the absolute owners of their bodies and their members. They have only the right of use. God brought man into existence and wants him to fulfil the divine purpose which the Creator set before Himself in creating man. This purpose of God appears, for example, in the natural capacity of the generative faculty to produce children. Man, therefore, cannot do as he wishes with himself and the integrity of his body, or destroy the functioning of his faculties, arbitrarily, because he is bound to keep within the limits set by the purpose of Nature itself. This end of Nature, and therefore the purpose of God who created Nature, with its ends, would be made impossible if arbitrary sterilization were allowed. The objection is raised that direct sterilization in some cases is absolutely necessary. It is argued that the part is subordinated to the whole, and that from this subordination it follows that if the whole is endangered, the part may be sacrificed to preserve the whole.
But we have to be careful of applying too hastily such general principles. This subordination of the part to the whole warrants the interference with the function, by mutilation or total removal of the part, only when the part by its mere existence, or by its activity, endangers the whole immediately and directly. But such a justification is evidently not proved when the danger is created, not by the faculty itself or by its activity, but by the free will of man.
Let us take the case of a woman who would run great risk to her life if she gave birth to a child. In order to preclude that danger, she has herself or her husband sterilized, so as to be able to enjoy marital intercourse without running any risk to her life. The risk would be run by the free act of the will of the woman, insisting on having intercourse; it is not the faculty itself, then, which puts her life into immediate danger, but the free exercise of the faculty. The only moral and legitimate way for her to avoid the risk which threatens her life from the activity of the generative faculty, would be to refrain from marital intercourse altogether. But if life itself is immediately and directly imperiled by an actual disease of the generative organs, it is obviously allowed to remove such diseased organs, just as it is morally justifiable to remove a leg or an arm to preserve life or health, when milder measures do not suffice.
Let us consider, then, the difference between the two cases. In the first case, the danger is consequent upon the woman's act of free will, insisting on having intercourse; apart from intercourse there is absolutely no danger to her life. In the second case, the generative organs are already diseased without any act of free choice here and now entering into the question. Here either the part or the whole must necessarily be sacrificed.
Hence the principle that the part is to be sacrified to the whole would here apply.
But the more important question arises when the State is the whole to be considered, and the individual is the part to be subordinated. Has the State the right to sterilize persons who are likely to procreate offspring either mentally defective or infected with hereditary diseases?
The argument as proposed runs as follows: the State, in sterilizing such persons, does nothing else but safeguard the common good. If the common good is endangered by the private rights of individuals, then the State (so the defenders of this theory argue) has the right of curtailing the rights of the individuals, and the more so as the common good is jeopardized by the individual. For "Gemeinnutz geht vor Eigennutz", that is "the common good absolutely prevails over the private good," as the Nazi slogan has it. Now first of all, to settle the dispute, the following questions have to be dealt with:
(1) What is the relation of the individual to the State?
(2) What is the true understanding of the term "common good" to which those who propose state-sterilization of the unfit appeal?
(3) How does the true understanding of the term "common good" apply to the question of state-sterilization?
What, then, is the relation of the individual to the State? Man, as a rational being, endowed with soul and body, is created by God. This fact has to be taken for granted in the following investigation. God, being the Creator, has the absolute dominion over man; man, as such, has only a qualified dominion over his life and body. God, in creating man, had His purpose, which is expressed in the essential tendencies of man's nature; for it is the Creator who by calling the creature into being has impressed upon it the purpose of its creation. It is, consequently, the duty of man to fulfil God's purpose in a life which corresponds to the tendencies embodied in man's very nature. In other words, God's purpose in creating man is the natural perfection of his personality as a rational being. This is a descriptive definition of the divine purpose in regard to man. Hence man came into being, was given life and body, to fulfil his natural perfection; consequently man has only such a dominion over his life and body as accords with his natural end. This is a qualified dominion, the right, not of absolute ownership, but of use. We see, then, that the duty which is given with the very being, and the strict right to use that being in so far as it accomplishes that duty, correspond with one another.
It is evident that if the individual as such has to fulfil that duty, that is, to arrive at the perfection of his own personality, only by means of his limited individual strength and resources, he would fail to reach the fully developed human life. Only in society, therefore, can man develop his natural faculties to the full extent and arrive at the perfection, the realization of which is commanded by God. "The State is a perfect and self-sufficing society, consisting of many families, united under a common ruler, for the attainment of the complete welfare and life of the community."
It cannot be the purpose of this article to give a full account as to how the State developed historically from the individual and family, how the family widens into the village community, how the village community comes gradually to acquire such a degree of organization as makes it a self-sufficient society or a State. The question is rather how the rights of the individual and those of the State are related to one another. It seems to be obvious that the individual as such is antecedent to the State, and that therefore certain rights of the individual are antecedent in time and in importance to the rights of the State. For the very existence of the State depends on the prior existence of the individuals. A group of individuals or families may reasonably be thought of as living together without forming any kind of highly differentiated community. But it is inconceivable to think of the State without the individuals on whom its existence completely depends. Being, life, body and its integrity, are given to man as an individual before he enters into society. Hence it follows that the rights to existence, to life, and to integrity of body, are also given to man before he enters into the State. The individual certainly does not forego those rights because he has chosen to live with other men in a State, in order that his natural welfare, the natural perfection of his personality, may be better provided for.
What is the true meaning of the term "common good"? The chief argument in favor of state-sterilization of the unfit is that the common good prevails over the individual good, and that to safeguard the common good, the State as its guarantor is entitled to interfere with the rights of individuals in so far as they prevent the State from fulfilling the duty and purpose of its existence. This statement is proved in the following argument:
The whole is more important than the part, and consequently to save the whole, the part may rightly be sacrificed if it does harm to the whole. The mental defectives and otherwise hereditarily diseased people certainly do harm to society as a whole, overburdening it with new expenses and taxes, and diminishing the general well-being of the State. Consequently they may be sterilized in order to safeguard the community against "unjust" burdens. The first proposition is proved thus. The State is one great organism, and just as in an organism the part is absolutely subordinate to the whole, and must be sacrificed if the whole runs a risk of serious harm, so the individual as a part of the State-organism, must give up his personal rights if the exercise of these seriously endangers the whole organism.
First of all, this argument would be valid if the individual with his faculties were essentially related by his very being to society as to his proximate end, just as the members of the human body are essentially related by their very being to the human body as their proximate end. But it is false and misleading to conceive the State as a living organism like man's body. Were it so, the claim on the part of the State to complete subordination to itself of the individual would be valid. But it has already been proved that the individual has rights which are not relinquished by his entering into society. With regard to those rights, therefore, the individual is not subordinated to the State so completely as to be a part of it and nothing else. The argument in favor of sterilization put forward by modern statesmen, scientists, and eugenists, seems to over-state the preponderance of the common good, namely, of the whole over the part, or rather, they conceive the common good in a false way.
To prove this statement we have to make clear what ought to be understood by the term "common good", that is, the true common good, and consequently, what rights the State has as the custodian of that true common good with regard to the individuals. It is wrong for the State to define arbitrarily what the common good is to be, and then to deduce from this arbitrary construction, the rights which it has in order to realize that common good. But the true common good has to be determined in accordance with the nature of the individuals who make up the State, as it is from the very nature and the natural rights of the individuals that the State derives its existence and purpose.
This purpose, the reason for the existence of the State, is twofold, namely, to protect the natural rights of its constituent members, and to provide facilities for the development of their manifold capacities, whether physical, intellectual, cultural, or moral. Life, body, and its integrity, and the right to them, are given to man by Nature, that is, by God Himself. These "goods ", and the rights to them on the part of the individual, are not only the foundation of his welfare, and of his temporal perfection; they are moreover the radical basis of the State itself. It is the State's duty to help man that he may build upon this Nature-given foundation that natural perfection which is evidently God's intention, but which he can hardly attain apart from the help of organized society. The primary common good is therefore the protection of those inviolable fundamental rights of the individual which are the foundation of his temporal welfare. Consequently, this is that inviolability, to safeguard which is the foremost duty of the State. A State which thinks itself entitled to interfere with the integrity of man's natural rights, on the ground that the common good, as they understand it, requires and entitles it to do so, destroys in that very action the basis of the common good, that is, the inviolability of man's natural rights.
It is evident, then, that in claiming the right to violate individual natural rights on the ground of the common good, the State does not ground its claim on the true common good. Nevertheless, society as such has higher and nobler rights with regard to its members than the members themselves as such; that is, socially, in the sphere of man's activity which is posterior to his individual and personal rights and responsibilities, the higher authority, of course, in what pertains to man's merely temporal welfare, resides in the State. But because the end of the State is the true common good, the rights of the State, though more extensive than the rights of its members as such, obviously must correspond with and subserve the prior rights of men as individuals. The distinction between man as an individual, with prior rights, and man as a member of society, with subsequent duties and obligations, is of the highest importance. To ignore it is to fall headlong into confusion. For the members are bound to subordinate themselves to the State only in so far as they are members of it. They are members not wholly merged in the State; in other words, they are not merely a part of the whole, since they are independent personalities in their possession of prior natural rights. The spheres of the individual and of society do not simply coincide, although they do overlap. It follows, therefore, that the State may not interfere with rights which belong to the person as a person, and not to the person as a member of society.
In cases where the State is really entitled to interfere with individual rights, for instance, to punish murder or other crimes, that right of interference has to be proved: for the individual is in certain possession of his right. With regard to the argument of the eugenist that in the case of the mentally defective, the common good entitles the State to intrude upon personal natural rights, namely, to destroy the power to use the generative faculty, the very contrary, not to destroy but to protect, seems rather to be the duty of the State. For the protection of such prior rights is the reason for the State's existence.
Besides, the material loss which the whole, that is, the State, must suffer in the case of caring for mental defectives, does not prove of itself the right on the part of the State to apply the only thoroughgoing means that could prevent that loss. These means must first be proved to be morally good or indifferent, or at least to become indifferent or good in view of the loss to which the State would otherwise be subject. But the mere fact of such material loss to the State, and the bare assertion that the application of the only effective means of preventing it must therefore be legitimate, in no way proves that the actual application of the only effective means is good, or at least indifferent, morally.
It is further a wrong and a materialistic principle that the individual may not cause any burden or trouble whatever to the State, as the adversaries argue. The State is looked upon by those persons as an ultimate end in itself: the individual becomes its slave, and is worth only as much as the service he renders the State. That is the State-theory of Bolshevism and Fascism, which in reality derive their principles from the same origin, however diametrically opposed to one another they may appear to be at first sight.
To safeguard our Catholic State-theory, that the State is for the individual and not the individual for the State, we have to distinguish carefully between the true common good and the material goods which the society holds in common. The former, which includes primarily the protection of the inviolable personal natural rights, may never be infringed. Even further, it is precisely the true common good in this sense which requires in individual cases that the material goods held by society in common be sacrificed in the interests of the true common good. For there are burdens and losses in the realm of material goods which have to be borne by the community on behalf of the individual.
How does the true meaning of the term "common good" apply to state-sterilization? The law for the Prevention of Hereditarily Diseased Offspring, promulgated by the German Government on 14 July, 1933, runs, in its first paragraph, as follows:
Whosoever suffers from hereditary disease can be sterilized if, according to the finding of medical science, a great probability exists that his (or her) offspring will suffer from severe bodily or mental hereditary disease.
Under number 2 of the same paragraph, several diseases are mentioned which are to be considered of that nature. Details can be found in the translated text of the law which has been appended to this article.
We have already, in the foregoing section, proved that state-sterilization of the unfit—whether voluntary or compulsory— is immoral, and therefore illegitimate. Why? Because the performance of this operation is an attack not only on the inviolable and inalienable natural rights of the individual, but on the very foundations of the State itself. It is sheer materialism to sacrifice that true common good of the inviolability of human rights merely to save some of the material goods held in common by the community. Above all, if the State were justified in interfering with the inalienable rights of bodily integrity, there would be no essential difference between such interference and the "right" to interfere with the very lives of these innocent people. In either case the State would be exercising an absolute dominion over its subjects, in the supposition that the subjects are mere members of the social organism, and not independent personalities in their own right.
In addition, we must observe that the State would manifestly fail in carrying out an essential duty, if it attacked the bodily integrity of an innocent citizen in any way, as by depriving him of the power of procreating offspring, since the possession of the power is not an attack on the State, even in the most remote degree. The exercise of the power, however, is quite another thing.
Having proved the illegitimacy of depriving a person of the generative faculty in this way, there arises a second question, namely, that of the State and Matrimony.
Independently of the State, man has an absolute right to marry, if capable of doing so. This right is given him with his existence, just as he has a right to life, because "individual existence and the institution of the family precede the State, and therefore, though the State may issue regulations with regard to marriage, it has no right to prohibit marriages totally to any man of class of men". But what if a man is incapable of discharging the responsibilities of marriage? "Although man has an absolute right to marry, as he has to life, if he cannot fulfil the duties of the married state, he may rightly be deprived of the exercise of the right to marry, though radically he retains the right."
The two following questions arise and demand an answer.
(1) Is the State allowed to prevent the marriage of a person who has absolutely lost rational control over himself, and if it has this power, by what title does it claim it?
First of all, we have to consider the definition of marriage. Marriage is the lawful contract between man and woman by which is given and accepted the exclusive and perpetual right to those mutual bodily functions which are naturally apt to generate offspring. The primary purpose of the contract is the generation and education of offspring. Now as marriage is a contract, and as "natural law dictates that one who is non compos, that is, who has not the actual use of reason, is incapable of a human act and therefore can neither accept nor transfer rights", it is evident what the solution must be in the case of mental defectives who have entirely lost rational control over themselves. It goes without saying that, although they retain the radical right to marry, if they wish to enter into the marriage-contract, they may rightly be prevented from doing so by the legitimate authority. For they are not able to carry out the primary purpose of marriage, the education of children. The exercise of the absolute right to marry must be determined not only by the acts of the two partners, but also by the result of marital intercourse, namely, the offspring, over whose education the parents have the essential duty to watch. Now if the execution of that duty is rendered impossible by Nature itself, the exercise of the right with which that duty is inseparably associated may be prohibited by the State. Moreover such mental defectives are ex hypothesi incapable of entering into a contract; marriage is essentially a contract; consequently their marriage would be invalid according to the natural law. If, therefore, the State has the right to prohibit the exercise of a natural right of its subjects in such cases, it is obviously not because mental defective offspring are likely to result from such a marriage, but because in this case the State urges and gives effect to the natural law.
(2) The second question involves quite a different case: Is the State allowed to prevent mental defectives or otherwise diseased persons who have the actual use of reason, but are likely to procreate mental defectives or otherwise hereditarily diseased offspring—is the State allowed, we must ask, to prohibit these persons from marrying? Can the State set up an annulling or prohibitory impediment of marriage?
The fact is that the German Government did so, by issuing the "Law for the Protection of German Blood and Race", promulgated at the Reichstag of Nuremberg, on 15 September, 1935. The first paragraph of this law reads thus:
Marriages between Jews and subjects with German blood are prohibited; marriages which have been entered into against this law, are null and void, though they may have been entered into abroad, to evade the law.
Another law of that kind was promulgated by the same Government on the 18 October of 1935, namely, the "Law for the Protection of the Hereditary Health of the German People." This law forbids marriages between persons who suffer either (a) from such contagious diseases as are likely to do considerable harm to the health of the partner or the offspring; or (b) from hereditary diseases in the sense of the Law for the Prevention of Hereditarily Diseased Offspring (i.e. the Sterilization Law).
In answering the question as to the legitimacy of such legislation, we must distinguish between baptized and unbaptized persons. Canon 1016 of the Codex Iuris Canonici reads as follows:
The marriage of baptized persons is regulated not only by divine but also by canonical law, the civil power remaining competent in regard to the civil effects of marriage.
It is evident from the history of matrimonial impediments that the Church has never instituted a matrimonial impediment of disease. In cases where persons suffering from serious diseases intend to marry, the principles of the Fifth Commandment concerning the care of health have to be applied. Such persons must investigate whether immediate danger to life and health would arise from their marriage, or whether there are sufficiently grave reasons to compensate the lesser evils, which may then be put up with.
It is now commonly held that the State has the power to constitute impediments in respect of the unbaptized, provided it do so by laws that are good and reasonable. The reasons given for this opinion are two:
a) Outside the Church, there exists no supreme independent authority except the State. There is need for the unbaptized to be ruled by some external authority, since true, legitimate, and orderly marriage is essential for the well-being of mankind. The common good, therefore, demands this authority.
b) Several replies and instructions given to missionaries by the Roman Congregation make it abundantly clear that they were of opinion that such authority existed in the State.
What, then, are the circumstances which allow the State to set up annulling or prohibitory matrimonial impediments in respect of the unbaptized. It is exclusively the protection of the common good which authorizes the State to regulate the marriages of these persons.
(1) The "Law for the Protection of German Blood and Race" claims to justify itself by asserting that the mixture of blood of different races adulterates the blood of the pure stock. This mixture, they say, counteracts the ultimate tendency of nature to form and to preserve the distinction of races, and to erect them into a definite hierarchy. The primacy in this hierarchy belongs by nature to the Aryan race ruling over all other races by virtue of "the nobility and purity of the Aryan blood". Since the typical characteristics are hidden in the radical constituents and in the blood, it is the duty of the Aryan State to protect that blood against all adulteration by intermarriages with other races. The protection of that racial purity, then, is to the Aryan State the supreme good; the supreme evil is, therefore, the contamination of that blood. To doubt or to deny the supremacy of Aryan blood over all other goods is considered to be equivalent to high treason, as being an attack on the foundation of the State itself. The "Faith" of a National Socialist has to be built on this racial world-view (Volkische Weltanschauung).
But does such a mixture of blood really violate the true common good? The answer depends on the validity of the fundamental dogma of the National Socialist Weltanschauung that the purity of blood and the hierarchical order of races, with the Aryan race holding the primacy, is intended by Nature. Now that dogma is by no means proved. On the contrary, this dogma has been openly rejected by such anthropologists of standing as Eickstedt and Menghin. But with that rejection the foundation of the whole theory crumbles; and with the collapse of this dogma of racial purity as the supreme good, the justification collapses also for seeking it in the interest of the common good. Hence there is no justification for setting up matrimonial impediments (in respect of the unbaptized) on racial purity as the supposed common good. Neither the Congregation for the Propagation of the Faith nor the missionaries have ever declared all marriages among different races to be, as such, against natural law, namely, to be illicit, much less to be null and void. Now and then, nevertheless, cases may arise where it would be morally right to persuade such people not to enter into the proposed marriage. Hence it not infrequently happens that missionaries who have lived among barbaric tribes have set themselves against such inter-marriages.
(2) In issuing "The Law for the Protection of the Hereditary Health of the German People," the National Socialist State again has gone far beyond its power. For the right to marry is given by Nature to all men who are capable of entering into the marriage-contract; consequently this right is in certain possession until the State gives irrefutable evidence of its right to interfere. This, as we have seen, the State cannot do. It goes without saying that in exercising his right to marry, man is bound to take sufficient care of the health of his partner and their common offspring. In doing so he takes care of the common good. But if, after having taken sufficient care and precaution, the couple still run the risk of giving birth to diseased offspring, their right to marry is not thereby annulled. Here again the principles of the Fifth Commandment in regard to the care of health supply the true norm of conduct. That the health of the nation suffers from the maladies of those tainted with hereditary or contagious diseases, and that their offspring imposes on the State the burden of supporting them, cannot be denied. This is simply to say that the State is obliged by its very raison d'etre to make expenditures of its material goods to protect the inviolable natural rights of its constituents. The Creator, in giving the right to marry to all men capable of it, implicitly gives also the right to the individual here and now to call upon the State to spend its material goods for the very purpose for which it has such goods. And since it is the will of God, the Lord of Nature, that the State should bear this burden, it has no right whatsoever to "protect" its material goods by curtailing the inviolable natural rights of the individual.
(3) By segregation, mental defectives are practically prevented from exercising their natural right to marry, though the State does not theoretically set up any matrimonial impediments. But what right has the State to segregate these people? Only a few reasons will be given here. For further explanations the reader may consult Eugenics. Segregation of mental defectives who suffer from some degree of insanity may be defended on the ground that such segregation defends the mental defectives themselves, and that to leave them at large is not in harmony with public security. But as Fr. Davis says: "Segregation is not defended on the ground that defectives may, if let loose, procreate defective offspring; were it so, it would be a view that is not proved to be true and all such unrealities cannot sustain any rational argument."
Moreover, human nature with its tendencies and passions is entitled to have within the range of the natural law and God's will an outlet for concupiscence. This outlet is carefully provided for by God's will in the state of matrimony. If then the State could encroach upon the natural right to marry, it would prohibit what God Himself permits. Man, hindered by the State from availing himself of this divinely instituted outlet for concupiscence (remedium concupiscentiae), will certainly find another and unlawful way to gratify his passions. Thus would be opened an avenue to general promiscuity amongst people who are prevented from entering upon matrimony. The public health and resources, in whose interest the State keeps these people from marrying, would suffer from this promiscuity, and evils far worse than those which would have followed in the normal course of events will ensue upon the very measures taken to avoid them. Venereal diseases, unbridled lust, and sex-mania would spread without check or hindrance. We see quite clearly here that the natural law may not be violated without its taking revenge upon those who violate it.
Finally, if we look at the whole question from the standpoint of Christian revelation, it is evident that those mentally defective children are destined not only for this world, but for the complete fulfilment of their destiny and the reward in the world to come of their earthly sufferings. However crippled and defective they may be in this life, they are destined to partake in an eternal bliss in the home of God, their Father. The very drawbacks, mental or physical, from which they must suffer here below, if borne with Christian patience, will but increase their eternal happiness.
As Christians, then, we must reject the principles which underlie these three Laws, namely, for the Prevention of Hereditarily Diseased Offspring, for the Protection of German Blood and Race, and for the Protection of the Healthy Heredity of the German People.
Why must we reject these principles? First, because they deify the State and sacrifice all individual freedom and the most sacred natural rights to a falsely conceived common good. But their more fundamental error lies in making this frail life on earth the absolute end of mankind; they forget—or rather, by implication deny—the real destiny for which Almighty God in His goodness and love has created man, which is nothing less than the unimaginable beatitude of eternal life with God. "We have not here a lasting city, but seek one that is to come." (Heb. 13:14).
LAW FOR THE PREVENTION OF HEREDITARILY DISEASED OFFSPRING.
(PROMULGATED, ON 14 JULY, 1933.)
The Government of the German Reich has passed the following law which is promulgated herewith.
P. 1, 1. Whoever suffers from hereditary disease can be sterilized if, according to the finding of medical science, a great probability exists that his (or her) offspring will suffer from severe bodily or mental hereditary disease.
2. An hereditarily diseased person in the sense of the law is one who suffers from one of the following disease:
a. Innate mental deficiency,
c. Recurrent (maniac-depressive) insanity,
d. Hereditary epilepsy,
e. Hereditary St. Vitus' Dance (Huntingdon's chorea),
f. Hereditary blindness,
g. Hereditary deafness,
h. Severe hereditary bodily deformity,
3. Furthermore a person suffering from severe and chronic alcoholism is liable to be sterilized.
P. 2, 1. A person thus liable to be sterilized is entitled to file a petition. If such a person is incapable of transacting business or is under tutelage on account of mental deficiency or if he is under eighteen years of age, his legal representative is entitled to file a petition in his stead, must first seek the authorization of the Court of Chancery. If the person has come of age and has been placed in the care of a guardian, the latter's consent is required.
2. A certificate required from a medical officer approved by the German Government that the person to be sterilized is fully aware of the consequences of the operation, is to accompany the petition.
3. The petition may be withdrawn.
P. 3. The following persons may also present petitions for sterilization:
a. Medical Officer.
b. Director of hospital, mental institution, nursing home or prison for the inmates of the institution concerned.
P. 4. The petition is to be made out in writing and sent to the offices of the competent Heredity Health Court. The facts supporting the claim are to be certified by medical experts. The Court is obliged to inform the M.O. concerning the petition.
P. 5. The decision rests with the Heredity Health Court within whose jurisdiction the domicile of the person to be sterilized is situated.
P. 6, 1. These Heredity Health Courts form a branch of the district Courts. Each consists of a district judge, a medical officer and another doctor qualified for practice within the German Reich and a specialist in matters of heredity. For each of these members a representative must be appointed.
2. No one who has sought authorization from the Court of Chancery according to P. 2, I can be president of an Heredity Health Court. If the M. O. himself has filed the petition with the Heredity Health Court he may not vote in the Court.
P. 7, 1. Proceedings of the Heredity Health Court are not public.
2. It is the duty of the Heredity Health Court to make inquiries. It is authorized to examine the witnesses and experts, to summon the candidate for sterilization, to order his medical examination and in case of unjustifiable absence to apprehend him. The rules of Civil Courts are to be applied to the examination and swearing-in of witnesses and experts as well as to the exclusion of particular judges. Doctors examined as witnesses or as experts are strictly bound to give evidence. Law Courts, administrative Authorities, hospitals are bound to answer inquiries made by the Heredity Health Courts.
P. 8. The Court must give judgment based on the result of the examination and evidence and according to its own unbiased conviction. The verdict is given after oral consultation and in accordance with the vote of the majority. It must be set down in writing and signed by the voters. The reasons for deciding on or refusing, sterilization must be stated. The verdict must be communicated to the petitioner, the M. O., and the subject for sterilization, or in the case of his legal inability to file a petition, to his legal representative.
P. 9. The petitioner, the M. O., and the subject for sterilization may appeal in writing to the offices of the competent Court within one month after the receipt of the verdict. (The period for appeal has been shortened by a change in the law to a fortnight). If the period during which appeal may be made has elapsed, the case may be reopened again in accordance with the rules for civil actions.
P. 10,1. The higher Heredity Health Court forms part of a higher provincial Court and its competence extends as far as the jurisdiction of the latter. It consists of a member of a higher provincial Court, a M. O., and another doctor qualified for practice within the German Reich and a specialist in matters of heredity. For each of these members a representative must be appointed. Paragraph 6, 2 must be applied here also.
2. The proceedings of the higher Heredity Health Court are ruled by Paragraphs 7 and 8.
P. II, 1. The surgical operation necessary for sterilization may be carried out only in a hospital and by a doctor qualified for practice within the German Reich. This doctor may not undertake the operation before the verdict has been finally given. The appointment of doctors and hospitals qualified for the performance of the operation is made by the supreme provincial Authorities, within their own territory. The operation may not be carried out by a doctor who filed the petition or took part in the Court as a member thereof.
2. The doctor who performs the operation has to submit to the M. O. a written report as to the carrying out of the sterilization, informing the M. O. of the method used in each particular case.
P. 12, 1. The final verdict of the Court having been given, the Sterilization is to be carried out, even if necessary, against the will of the person to be sterilized, unless this person be the one who also filed the petition. The M. O. has to apply to the police in order that necessary measures be taken. Physical force is admissible should other measures remain insufficient and ineffective.
2. Should circumstances arise which demand re-examination of the case, the Heredity Health Court is required to reconsider the case, in the meantime staying the execution of the sterilization order. Should the petition for sterilization have been refused by the Court, the case may not be re-opened unless new circumstances arise which would justify sterilization.
P. 13, 1. The costs of the action are borne by the state. The costs of the
2. operation by the health insurance companies, in the case of a person insured; in the case of non-insured and indigent persons, by the public welfare department. In all other cases the state defrays the doctor's fees according to the minimum scale set down in official tariffs and the average hospital fees. The remainder has to be paid by the person to be sterilized.
P. 14. Sterilizations performed beyond the prescriptions of this law, as also castrations, may be permitted only when carried out in accordance with sound medical practice, so that serious danger to the life or health of the person to be sterilized or castrated, whose consent must first be obtained, may be avoided. (This paragraph has recently been extended by a subsequent law. "Castration of a male is also allowed with his consent if the M. O. or doctor of the Court consider it to be necessary in order to relieve the person of a perverse sexual impulse which is likely to be the cause of further offences in the sense of PP. 175 to 178, 183, 223 to 226 of the Penal Code.")
P. 15, 1. All persons taking part in the proceedings of the Courts or in the operation of sterilization are bound to professional secrecy. 2. Those guilty of unjust violation of professional secrecy are liable for punishment by imprisonment, not exceeding one year, or by a fine. Prosecution cannot be made except by petition, which petition may also be lodged by the president.
P. 16, 1. The execution of this law is entrusted to the Governments of the German States.
2. The supreme provincial Authorities appoint the seats and areas of jurisdiction of the Courts, notwithstanding the prescriptions of Paragraph 6, 1 Sentence 1, and of Paragraph 10, 1, Sentence 1. They nominate the members of these Courts and their representatives.
P. 17, The Minister of the Interior with the consent of the Minister of Justice issues the judicial and administrative regulations necessary for the execution of this law.
P. 18. This law comes into force on January the first, 1934.
The Chancellor of the Reich,
The Minister of the Interior,
The Minister of Justice.
Some of the regulations provided for in P. 17:
". . . If a qualified doctor in the course of his practice should come to know of a person suffering from any hereditary disease or subject to severe and chronic alcoholism, he is required to notify the competent M. O. without delay." The same duty is incumbent upon all other persons occupied with therapeutics. In mental institutions the directors and managers are bound to give this information. Those who deliberately or through negligence fail to fulfill this obligation are liable to a fine not exceeding RM 150."
NOTES AND REFERENCES
No. 1. Dr. Cronin, The Science of Ethics, Vol. II, p. 461.
2. Ibid., p. 483.
3. Henry Davis, S.J., State Sterilization of the Unfit.
4. Henry Davis, S.J., Moral and Pastoral Theology, Vol. II, p. 327.
5. Henry Davis, S.J., op. cit.. Vol. IV, pp. 74, 75.
6. See also Codex Juris Canonici, cc. 1960, 1961.
7. Chief references may be derived from Adolf Hitler, Mein Kampf (My Struggle), Vol. I, pp. 314, 317; 359/60, 372; Vol. II, pp. 446-448. See also the text of the law itself.
8. Oswald Menghin, Geist und Blut (Mind and Blood), pp. 32-35, 51-52, 63, 92, 94; von Eickstedt, Rassekunde und Ranengeschichte der Menschheit, Stuttgart, 1934, pp. 129-131.
". . . We must check the tendency to regard any class of living things as finally fixed and incapable of further development; this applies also to the races of mankind. We should remember that, viewed from the standpoint of racial history, the laws of heredity have only an ephemeral importance. . . . What we have before our eyes today is, therefore, nothing more than a cross-section through the ever changing flow of the growth-phenomena in the life of races. . . . " (translated from the German original.)
9. Henry Davis, S.J., Eugenics, Aims and Methods.
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