Women still have to return to work immediately after a miscarriage if they are not on sick leave. If the Federal Council has its way, this will soon change. Women who have suffered a miscarriage would then also be entitled to periods of protection under the Maternity Act.
The Federal Council has called on the Federal Government to introduce protection periods for mothers affected by miscarriages in accordance with the Maternity Protection Act. This should be a voluntary entitlement in order to take account of individual circumstances and needs. It is now up to the Federal Government to reform the Maternity Protection Act accordingly.
According to the Chamber of States, the duration of maternity leave should be staggered and begin well before the 20th week of pregnancy. The maternity protection period should be extended in line with the duration of the pregnancy. The Federal Council passed this important resolution at its meeting on 5 July 2024.
The resolution rightly made it very clear that a Miscarriage This often places a heavy physical and psychological burden on the woman affected. They should therefore also have a voluntary entitlement similar to the existing prenatal maternity protection.
The current legal situation for miscarriages
Maternity protection is granted to mothers before and after the birth. The legal situation is different for Miscarriage or Stillbirth which are distinguished by law.
- According to this, it is a Stillbirth, if the child weighs at least 500 grams and has reached the 24th week of pregnancy. Because the legislator defines a possible viability of the child with these cornerstones, maternity protection applies to the mother affected by a stillbirth in this case after delivery. She is therefore entitled to 18 weeks' maternity leave and maternity pay.
- From a Miscarriage On the other hand, a pregnancy is said to end unplanned, before the child is viable. In legal terms, this means that the foetus weighs less than 500 grams and leaves the womb before the 24th week of pregnancy. A miscarriage is therefore not legally regarded as a birth. Therefore, a woman affected by this is not yet entitled to maternity protection in Germany.
Note: Whether it is a miscarriage or a stillbirth is certified by a doctor. In any case - and incidentally also after an abortion - has an affected woman at least Entitlement to midwife assistancewhich must be paid for by statutory or private health insurance.
Stress caused by and after miscarriage
In 2021, according to Germany Hospital diagnosis statistics For the main diagnosis "pregnancy with abortive outcome", a total of almost 40,000 miscarriages are recorded. However, the actual number is significantly higher because quite a few miscarriages occur without symptoms in the first weeks of pregnancy and are sometimes interpreted as a delayed onset of menstruation. In addition, unlike stillbirths, miscarriages do not have to be reported to the registry office.
In my many years of experience as a midwife, a woman going through a miscarriage is extremely stressful for her, not only physically but also psychologically. I have accompanied quite a few affected women who have developed a feeling of failure or even a negative relationship with their body as a result of this experience. Many are also afraid of having to go through such a situation again during the next pregnancy, as this probability unfortunately increases after a miscarriage.
I therefore consider it all the more important that women affected by miscarriage not only receive midwife support, but are also granted maternity leave. Above all, they need time to come to terms with the event physically and emotionally. I can therefore only wholeheartedly agree with the Bundesrat's resolution and hope that the Federal Government will implement the reform as soon as possible!
The Federal Council's reasons for amending the Maternity Protection Act
The Federal Council is also of the opinion that protection periods should be introduced for those affected by miscarriages within the meaning of the Maternity Protection Act. In its view, the current legal situation leads to unjustifiable unequal treatment of those affected by a stillbirth and a miscarriage. The state chamber has therefore outlined its proposal: Staggered maternity protection after miscarriage should begin well before the 20th week of pregnancy and be extended in line with the duration of the pregnancy.
The Federal Council also rightly points out that miscarriages not only occur in many cases in early pregnancy, but also later in some cases. However, around the 20th week of pregnancy, children in the womb are so far developed that even a child that has died there must be delivered and the pregnant woman experiences a birth process, according to the explanatory memorandum.
The Chamber of the Federal States therefore believes that the following aspects in particular speak in favour of reforming the Maternity Protection Act:
- For a woman affected, a miscarriage is often a difficult turning point and often also traumatising. Accordingly, she needs Sufficient timeto recover, to come to terms with the loss and, if necessary, to seek psychological or psychotherapeutic support.
- Also for physical recovery and the avoidance of possible health complications, the time after the miscarriage is a decisive factor. The woman concerned should be given space for this through appropriate maternity leave.
- Current cut-off date regulations lead to unequal treatment. If, on the other hand, maternity protection in the event of a miscarriage were to be staggered according to the length of pregnancy, all women affected would be Access to protection and recreation received.
- Also labour law aspects play a significant role. At the moment, a working woman has to return to work immediately after a miscarriage if she is not on sick leave. If she had the right to maternity leave, unnecessary stress in the workplace could be avoided and job security guaranteed. In addition, those affected would be entitled to maternity pay. "If maternity leave is granted for longer than a doctor's sick note currently allows, those affected will not suffer any financial disadvantages. There would be no slipping into sick pay. This would also benefit employers, as they would be able to settle accounts with the health insurance funds as part of the U2 levy," states the Bundesrat's explanatory memorandum to its resolution.
Protection for women in the event of miscarriages still needs to be regulated by law
The Bundesrat resolution was passed on the initiative of Hamburg, Lower Saxony and Saarland. Prior to this, the lead Committee for Family and Senior Citizensand the Committee on Labour, Integration and Social Policythe Committee for Women and Youthand the Health Committee recommended that the federal state chamber decide to this effect.
It is now up to the Federal Government to decide whether and when it wants to and will implement this request. By means of the parliamentary resolution, the Bundesrat has merely exercised its right of initiative, pointed out a serious problem and set out its views on the issue of maternity protection in the event of miscarriage. Thus can It could initiate a legislative procedure. However, it is not certain whether this will actually succeed, as resolutions passed by the Bundesrat are not binding on the Federal Government. So let's hope for the sake of all pregnant women who have to accept a miscarriage that the Maternity Protection Act is actually reformed in line with the resolution. And as soon as possible!
1§ Section 31(2) of the Ordinance on the Implementation of the Civil Status Act (Civil Status Ordinance - PStV); Civil Status Ordinance of 22 November 2008 (Federal Law Gazette I p. 2263), last amended by Article 4 of the Act of 17 July 2023 (Federal Law Gazette 2023 I No. 190).
2https://www.bundestag.de/resource/blob/966288/a08e859af024345cc8b87420d61acfcf/WD-9-054-23-pdf-data.pdf
