Kassel (AFP) – Children who have been harmed by their mother’s alcohol abuse during pregnancy are usually not entitled to compensation for victims later. The only difference is if the mother wanted to kill and abort her embryo by consuming alcohol, as the Federal Social Court (BSG) decided on Thursday in Kassel. (Az: B 9 V 3/18 R)
The plaintiff’s mother was addicted to alcohol and had also drunk significantly during pregnancy. She later said in court that she understood that doing so would harm her child. The now 15-year-old daughter is severely disabled because of a “global development delay”.
The youth welfare office, which was in charge of the custody because of the mother’s problems, applied for a victim compensation pension in 2009. The pension office in Saxony-Anhalt refused. A lawsuit was unsuccessful in the lower courts. The girl now lives with a foster family who continued the proceedings before the BSG.
The background to victim compensation is the monopoly of force and the state’s duty to protect. If this protection fails, the victims should receive compensation. According to the law, the prerequisite is an “intentional, unlawful physical attack” against yourself or another person. This is equivalent to “the deliberate introduction of poison”.
In this regard, the BSG emphasized that this compensation is not unlimited. In order to draw the line, the Kassel judges linked compensation to criminal law. The prerequisite is therefore that the attack is punishable by punishment and “crosses the criminal’s threshold”. The possibility of civil law claims for damages is not sufficient.
Admittedly, the fruit of the womb is also included in the scope of protection of the Victims Compensation Act. However, alcohol consumption during pregnancy is not prohibited. Only an attempted or actual termination of pregnancy is punishable.
A victim compensation is therefore only possible “if the alcohol consumption of a pregnant woman is aimed at an attempted termination of the pregnancy, ie an attempted killing of the unborn child”.
Here the mother knowingly accepted damage to her child. According to the findings of the lower courts, however, she did not intend to kill the embryo with alcohol and thus abort it.
xmw / cfm
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