D V 6. The duty of the State to protect the nasciturus does not require that contracts are classed as non-binding which were concluded with doctors and hospitals for abortions which are not punishable under the (new) counselling program. The program rather requires that the mutual tie of obligations between doctor and patient take the form of a legal relationship so that all obligations are fulfilled for valid legal reasons. Irrespective of any specific contractual consequences, §§ 134, 138 BGB are inapplicable. Doctors and hospitals only take part in abortions on the basis of a valid contract which safeguards their claim for payment and outlines their duties. It is in particular the doctors duty towards the unborn child and the patients health which needs contractual safeguards. As a consequence, faulty performance of the duties to provide counselling and treatment must in principle be able to trigger contractual and tortious sanctions.
However, in the light of the Constitution this result needs to be differentiated. A civil law sanction for faulty performance of the contract or for tortious infringement of the patients physical integrity is basically necessary; this entails not only the duty to pay back any wasted fees, but also the duty to compensate for damage under the provisions of §§ 823, 847 BGB, including compensation for pain and suffering resulting from a failed abortion or from the birth of a handicapped child. But as a result of Article 1 I GG, the childs existence cannot legally be classified as damage. The duty of all public bodies to respect every human being for its own sake, prohibits maintenance for a child to be classified as damage. In the light of this fact, the case law of the civil courts on liability for medical mistakes in counselling or in performing failed abortions needs to be reconsidered (see for abortion BGHZ 86, 240 et seq.; 89, 95 et seq.; BGH NJW 1985, 671 et seq.; VersR 1985, 1068 et seq.; VersR 1986, 869 et seq.; VersR 1988, 155 et seq.; NJW 1992, 1556 et seq.; for sterilisations see BGHZ 76, 249 et seq.; 76, 259 et seq.; BGH NJW 1984, 2625 et seq.). However, the doctors duty to pay damages to the child for damage caused in the course of an unskillfully attempted and thus failed abortion remains unaffected (see BGHZ 58, 48 [49 et seq.]; BGH NJW 1989, 1538 ).
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