Abortion in the Criminal Code: Healthcare or crime?

From crime against life to regulated healthcare

Abortion has been embedded in Dutch criminal law since the nineteenth century. "In the Netherlands, abortion has always been criminally regulated. Even before the introduction of the Criminal Code in 1886, abortion was a punishable act. After 1886, it was classified as a crime against life, and under the old provisions of Articles 295 through 298 of the Criminal Code, both the woman who caused or consented to an abortion and the person performing it were punishable. Later, Article 251bis was added, which expanded the criminal liability of the abortion provider. The primary intention was to protect unborn human life. However, prosecutions and convictions based on these provisions were very rare," Buijsen explains.

Wij Vrouwen Eisen

In 1974, the activist group Wij Vrouwen Eisen ("We Women Demand") was founded in Utrecht. This social movement included many members from other activist and political groups, such as Dolle Mina, Rooie Vrouwen in de PvdA, the Pacifist Socialist Party, and the NVV Women's Union. "This group strongly advocated for the legalisation of abortion and collaborated closely with the Foundation for Medically Responsible Pregnancy Termination (Stichting Medisch Verantwoorde Zwangerschapsonderbreking, or Stimezo). Established in 1969, the foundation aimed to make safe and lawful abortions possible and succeeded in opening the first abortion clinic in Arnhem in 1971. Four years later, there were already nine clinics nationwide, which could barely keep up with the growing demand for safe abortions. These clinics took the woman's request as the starting point. From the early 1960s onwards, the Public Prosecution Service increasingly refrained from prosecuting doctors for performing abortions," says Buijsen.

The introduction of the Termination of Pregnancy Act

In the second half of the twentieth century, the criminalisation of abortion changed with the introduction of the Termination of Pregnancy Act (Wet afbreking zwangerschap, Waz), which came into effect in 1984. Until then, abortion was entirely punishable under Article 296 of the Criminal Code. The Waz introduced a special exemption: a doctor performing an abortion in a licensed clinic or hospital, and in compliance with legal requirements, would not be punishable. The woman herself would also no longer be criminally liable. The Waz regulates the conditions under which abortion may be performed, including mandatory safeguards, professional supervision, and, until recently, a five-day reflection period. The Waz thus bridges criminal and health law, but abortion remains embedded in the Criminal Code.

The current law on abortion in the Criminal Code and the Waz:

Buijsen explains: "With the enactment of the Termination of Pregnancy Act in 1984, the criminal liability of the woman herself was abolished. Under Article 296, a person who provides treatment to a woman knowing (or reasonably suspecting) that it may terminate the pregnancy is punishable (paragraph 1). Aggravating circumstances include the woman's death as a result of the procedure (paragraph 2), the absence of the woman's consent (paragraph 3), and the combination of death and lack of consent (paragraph 4). There is no criminal liability if a doctor performs the procedure in a hospital or clinic licensed to perform abortions (paragraph 5)."

See the full text of Article 296 at the end of this article.

The call for decriminalisation

More than forty years later, the belief is growing that embedding abortion in criminal law is outdated. In their article "Abortion: Criminal law or healthcare?" Buijsen and Liselotte Postma, Assistant Professor of Criminal Law at Erasmus School of Law, note that advocates of decriminalisation argue that criminal law carries a stigma: abortion is literally listed between crimes such as theft and assault. This, they say, implicitly suggests that abortion is something that "ought not to be done." Furthermore, the presence of abortion in the Criminal Code hinders the further development of abortion care, since every change requires a lengthy political process. In 2023, former GroenLinks Member of Parliament Corinne Ellemeet therefore submitted the initiative bill "Abortion is Healthcare", which seeks to repeal Article 296 of the Criminal Code.

According to Buijsen, that would not be technically difficult. However, decriminalising abortion must be done carefully, which is easier said than done. "The current proposal has two important shortcomings," he explains. "First, part of the current abortion legislation would be transferred to the Healthcare Quality, Complaints and Disputes Act (Wkkgz). However, that Act is not well-suited for this purpose; it is intended to ensure the general quality of care, not to regulate such a specific and morally sensitive medical procedure. Second, the Netherlands is a party to the Istanbul Convention, a key European treaty on women's rights, which requires member states to criminalise abortions performed without the woman's consent. This means that repealing paragraphs 3 and 4 of Article 296 would not be possible."

Should abortion be removed from criminal law?

Opponents of decriminalisation emphasise that the current legislation is the product of decades of political and social debate, balancing the protection of unborn life and the woman's right to self-determination. 

In their joint publication, Buijsen and Postma also point out that Article 296 serves an important protective function: it targets unauthorised or coerced abortions and makes such acts punishable. The provision thus protects both the woman and the unborn life against abuse or negligence.

The Termination of Pregnancy Act has been evaluated twice since its introduction in 1984, and both evaluations concluded that it functions well. The Act achieves its goals: women have access to safe abortion care, while the quality and diligence of medical practice are ensured. Buijsen agrees: "Both evaluations indicated that the Waz generally functioned properly. They did not recommend full decriminalisation of abortion." According to him, the current framework ensures that doctors practice medicine carefully and professionally, without fear of criminal prosecution.

Abortion outside the criminal code

Although Buijsen stresses that caution is needed when amending the law, since it currently protects both the woman and the unborn life, he also sees alternatives to the existing system. "In the Netherlands, we have the Special Medical Procedures Act (Wet bijzondere medische verrichtingen, Wbmv). When a medical procedure is deemed 'special' by the Minister of Health, Welfare, and Sport because it is costly, requires scarce expertise, or is ethically sensitive, it can be subject to a licensing regime. For example, IVF and organ transplantation may only be performed in licensed institutions. If abortion were designated as a 'special medical procedure,' the current abortion clinics and hospitals with Waz licenses could continue under Wbmv licenses. Special medical procedures are governed by administrative rather than criminal law. That would be the most logical solution for abortion care as it exists today."

Developments around abortion

Internationally, abortion laws are diverging. In some European countries, such as Poland and Hungary, access to abortion is increasingly restricted. In others, including the Netherlands and France, there is growing support for safeguarding or even expanding the right to abortion. In the Netherlands, Buijsen sees no indication that abortion rights are under threat. On the contrary, he is optimistic about the future. 

If it is true that the criminal law framework continues to make abortion a socially charged issue, then decriminalisation could help make abortion care more accessible and less stigmatised, he says. "I consider full decriminalisation within the next twenty years to be entirely achievable," Buijsen concludes.

Article 296 of the Dutch Criminal Code (translation)

1. Anyone who treats a woman knowing, or reasonably suspecting, that such treatment may terminate her pregnancy shall be punished with imprisonment of up to four years and six months or a fine of the fourth category.

2. If the act results in the woman's death, imprisonment of up to six years or a fine of the fourth category shall be imposed.

3. If the act is committed without the woman's consent, imprisonment of up to twelve years or a fine of the fifth category shall be imposed.

4. If the act is committed without the woman's consent and results in her death, imprisonment of up to fifteen years or a fine of the fifth category shall be imposed.

5. The act described in paragraph 1 is not punishable if performed by a physician in a hospital or clinic authorised under the Termination of Pregnancy Act to carry out such procedures.