Current Methods of Dead Fetus Disposal in Germany and Their Implications for Japan﻿

Yoshichika MORI

Current Methods of Dead Fetus Disposal
in Germany and Their Implications for Japan
Yoshichika MORI
Hannan University
E-mail: y-mori@hannan-u.ac.jp

Abstract
This article surveys procedures for the handling of dead fetuses and their legal status in
Germany, to clarify the problems involved in this task and consider how such clarifications caninform current practices in Japan. According to the German Civil Status Act and the Executive
Order for the Civil Status Act, parents of a stillborn child, that is, a dead fetus weighing more than
500 grams, may register the child’s name in birth records. Though a miscarried child, that is, adead fetus weighing less than 500 grams, cannot be registered in any records, a certification
is issued in which the child’s name is entered in accordance with the parents’ request. Burial isgoverned by the law of each state: Most states require parents to bury a fetus when it exceeds
a certain weight and permit the burial of a fetus upon the parents’ request if the weight is below
the threshold. These regulations were introduced as a result of petitions from parents who had
experienced a miscarriage or a stillbirth. When considering procedures for the treatment of deadfetuses in Japan, we should take into account both the dignity of the unborn child and the feelingsof the bereaved parents.
Keywords: stillbirth, miscarriage, abortion, Civil Status Act, Burial Act

Introduction
This article discusses recent legal regulations
with a focus on burial laws in German statesin order to describe practices for the dignified
management of dead fetuses and regulatory
challenges to their burial or disposal. Deadfet uses are those bor n dead as a result ofstillbi r th, miscar r iage, or abor tion. Until
recently, few people in Japan were aware of
the practice of disposing of dead fetuses as an
ethical problem.1 It was not until 2004 whendead fetuses were found discarded as generalwaste by an obstetrician who ran a clinic, in
Yokohama City, that it was recognized as a major
problem.2 Around the same time, a committee
set up by Japan’s Ministry of Health, Labor andWelfare began to discuss the use of dead fetuses
for clinical research: While poor managementof dead fetuses was reported, deliberations overtheir clinical use began.

In this ar ticle, I will f irst outline theregulatory situations concerning the disposalof dead fetuses in Japan and the backgroundof the dispute over this issue and clarify the
associated challenges. Thereafter, I will compareand contrast the situation in Germany, whereburial law reforms, including provisions forthe disposal, are underway in several states. In
Germany, there is also a current debate overchanges to the management of dead fetuses interms of naming and registering identity, in
addition to these burial law reforms. Finally, I
will clarify the background of Germany’s burial
law reforms and identify regulatory challenges inJapan.

11

Journal of Philosophy and Ethics in Health Care and Medicine, No. 14, December 2020

1. Situation in Japan andbackground of the dispute
In Japan, the stillbirth of fetuses that die after
four months (12 weeks) of gestation must berecorded according to the “provisions on the
notification of stillbirth” (No. 42 of Ordinanceof the Ministry of Health and Welfare of 1946).
Stillbirth notif ication must be given to the
local government by the father or mother ofthe stillborn baby by submitting a stillbirthnotification form including the names of theparents, sex of the baby, gestational age, and date,time, and place of stillbirth, along with a stillbirthcertificate or a fetal postmortem examination
certificate issued by a physician or midwife. No
space is given in the form for the name of thestillborn baby, and unlike a baby born alive, itwill not be registered in the family register.
Article 2 (1) of the Cemetery and Burial Act
states that a corpse “includes a dead fetus in the
fourth month of gestation or later” and stillborn
babies in the fourth month of gestation or later
may be buried or cremated. Both the provisions
on the notification of stillbirth and the Cemeteryand Burial Act apply to dead fetuses in the fourth
month of gestation or later, and the permission forburial or cremation will be granted upon stillbirthnotification.
But what of dead fetuses before the fourth
month of gestation? In this case, there is no
obligation for the father or mother to notify
authorities of their child’s death. Further, theCemetery and Burial Act does not apply, andthe cor pse will generally be collected andincinerated as infectious waste, in a manner
similar to that of isolated or resected organs
or tissues. The director of the obstetrics andg y necolog y cli nic i n Yokohama Cit y was
charged and convicted of violating the Waste
Management Act, after he was found to havediscarded dead fetuses as general waste. This
event prompted the Ministry of Health, Laborand Welfare and the Ministry of the Environment
to carry out a national questionnaire survey on
the management of “aborted fetuses” before thefourth month of gestation among prefectural
governments and those city governments witha public health center. According to this survey,
some local gover nments have systems that12

grant permission for the incineration of aborted
fetuses in crematories, while others do not but
will accept a request from the father or mother,
if one is made. A detailed account of the survey
results is not provided here; however, based onthese results, the Ministry of Health, Labor andWelfare announced in 2004 that “it is necessary
to treat aborted fetuses before the fourth monthof gestation (12 weeks) adequately to preserve thedignity of their lives” and recommended that all
prefectural governments and city governmentswith a public healthcare center refer to thefollowing three criteria.3
1. The local government shall establish an
ordinance pertaining to dead fetuses andmaternity waste. A collection and disposal
agent licensed under this ordinance shallcollect an aborted fetus before the fourth
month (12 weeks) of gestation f rom a
medical institution separately from otherwaste and incinerate it at a licensed disposalsite.
2. The local government shall establish an
ordinance pertaining to dead fetuses andmaternity waste. A collection and disposal
agent licensed under this ordinance shallcollect an aborted fetus before the fourth
month (12 weeks) of gestation and incinerate
it at a crematorium. Alternatively, a medical
institution shall incinerate it in a crematory,
according to this ordinance.
3. According to the inst r uctions of themunicipality, medical institutions shalli nci nerate abor ted fet uses before thefourth month (12 weeks) of gestation in acrematory.
It should be noted that these recommendations
from the Ministry of Health, Labor and Welfare
apply only to artificially aborted fetuses before
the fourth month of gestation. This limitation
may be attributable not only to the fact that theevent that triggered these responses was related
to the disposal of such fetuses, but also to the factthat there are many circumstances in which theaforementioned recommendations are inadequate
for aborted fetuses in general. This is because
the number of natural miscarriages is unknown
and very early-stage natural miscarriages are notnecessarily treated in a medical institution, inCurrent Methods of Dead Fetus Disposal in Germany and Their Implications for Japan ﻿

contrast to the number of induced abortions, thereasons for which the doctor must report to theauthorities to keep a record of demographics.
Of all dead fetuses, those in the fourth
month of gestation or later are t reated as
corpses by law, and fetuses that are artificiallyaborted before the fourth month of gestation
are required “to be treated appropriately as
pertaining to the dignity of their lives” by the
Ministry of Health, Labor and Welfare; however,a discussion on how the nation should treat
miscarried fetuses before the fourth month ofgestation has been lacking. Moreover, further
discussion is required regarding whether theabovementioned three criteria are adequate forthe treatment of artificially aborted fetuses before
the fourth month of gestation. For example, therecommendations require “collection and disposal
agents,” “collection agents,” and “medical
institutions” to incinerate these fetuses at adisposal site or crematorium. However, they do
not grant the parents the right to bury or cremate
them, unlike in the case of fetuses in the fourth
month of gestation or later. Furthermore, somelocal governments permit burial or cremation,
but do not require the medical institution to
explain to the parents of the deceased fetus thatburial or cremation is possible. Thus, to examine
the validity of these points, let us consider thesituation in Germany, where burial law reforms
are underway.
Before doi ng so, let u s c on side r t heregulations regarding the use of dead fetuses
for research purposes in Japan. In principle,
similar to the provisions on the notification ofstillbirth and the Cemetery and Burial Act, deadfetuses at the fourth month of gestation or later
may be dissected and preserved for educationaland research purposes with the consent of the
bereaved family, based on the Postmor tem
Examination and Cor pse Preservation Act.
Although there are no clearly stated laws ornational guidelines for dead fetuses before thefourth month of gestation, the Japan Society of
Obstetrics and Gynecology released guidelines
for the use of deceased fetal or newborn organs
for research purposes in 1987.4
In 2002, the Ministry of Health, Laborand Welfare’s expert committee on human stem
cell-based clinical research began to discuss,more positively, in some cases, whether to allow

Yoshichika MORI

the use of dead fetuses for this type of clinicalresearch. However, after the 2004 event at the
obstetrics and gynecology clinic in Yokohama
City, the poor management of artificially aborted
fetuses came to be viewed as a social problem,
which led to the determination not to use deadfetuses for clinical research. The final guidelines
formulated in 2006 clearly state that clinicalresearch using stem cells derived from deadfetuses is outside the acceptable scope.5

2. Management of dead fetuses inGermany
In Germany, the notification of dead corpses
is stipulated by federal regulationsin the Civil
Status Act 6 and the Executive Order for the
Civil Status Act7 (hereinafter, Executive Order).
Dead fetuses that weigh 500 grams or more or
those that weigh less than 500 grams but hadreached 24 weeks of gestation are classified as
stillborn babies (Totgeburt), while those thatweigh less than 500 grams and had not reached
24 weeks of gestation are classified as miscarriedfetuses (Fehlgeburt). The former involves anobligation to notify the government under the
Civil Status Act. There is no such obligation forthe latter, and civil status cannot be registered for
miscarried fetuses, although a formal certificate
can be issued at the parents’ request. There areprovisions for the burial of dead fetuses in all
the state burial laws in Germany; however, thecriteria (weight and gestational period) for burial
obligation, regulations differ from state to stateon the use of dead fetuses for research purposes,
and the required disposal method for unburied
dead fetuses. Under the Civil Status Act, there
is no such category as “aborted babies” since
aborted fetuses are classified as either stillborn
or miscarried fetuses. Nonetheless, many state
burial laws have specific provisions for “aborted
babies.”A s for t he u se of de a d fet u se s fortransplantation, the Transplantation Act of1997 did not initially cover the procurementof organs and tissues from dead embryos andfetuses; however, provisions for this type oforgan and tissue procurement were added in the
Amendment of 2007.8 In addition, the German
Medical Association released guidelines in 1991
on their use for research purposes (Guidelines for13

Journal of Philosophy and Ethics in Health Care and Medicine, No. 14, December 2020

the Use of Fetal Cells and Tissues).9
In what follows, let us closely examine thetreatment of dead fetuses under German Civil
Status Act and the burial law provisions in eachstate. Let us discuss, albeit briefly, the use ofdead fetuses for research purposes under theseburial laws.
2-1．Regulations related to the Civil Status
Act
In Germany, the standards for stillborn babies
and miscarried fetuses are set out in Article 31(2) of the current Executive Order. The Executive
Order has been amended several times in thepast, and the standards have been changed.
The Executive Order of 1957 defined “stillborn
babies” as those with a height of 35 cm or above,
while “miscarried fetuses” were classified as
those with a height of below 35 cm.10 Thereafter,
weight became the measure for stillborn or
miscarried fetuses, and the amendment of 1979
defined the former as those weighing 1000 grams
or more, and the latter as those weighing lessthan 1000 grams.11 In 1994, a new amendment
defined stillborn fetuses as those weighing 500
grams or more, and miscarried fetuses as thoseweighing less than 500 grams.12 The amendmentof 2018, which is the current standard, classifies
dead fetuses that weigh 500 grams or more or
those that weigh less than 500 grams but havereached 24 weeks of gestation as stillborn babies,
and all other dead fetuses as miscarried fetuses.13
The reason for changes in these standards wasprimarily to be consistent with the fetal viability
outside of the mother’s body (The reason for theamendment of 2018, in particular, was to extend
pregnant or postpartum women’s eligibility toreceive benefits by including those at 24 weeks
of gestation or later). Note that standards otherthan weight, including babies without a heartbeat,umbilical cord pulsation, or voluntary breathing
after separation from the mother’s body, arecommon to the definitions of both stillborn
babies and miscarried fetuses.
How, then, do stillborn babies (weighing 500
grams or more or at 24 weeks of gestation) andmiscarried fetuses (weighing less than 500 gramsor before 24 weeks of gestation) differ in termsof their treatment in Germany? Stillborn babies
are registered in the “register of births”, along
14

with the place, date and time of birth, sex, andnames of parents, as well as a remark that “it was
stillborn”. In addition, the name of the stillborn
baby can be registered at the time of the request14(Article 21 (2) of the Civil Status Act). In otherwords, if a stillborn baby is named at the requestof the parents, it is treated in the same way as
babies born alive on the civil status register,
except for the added remark that it was stillborn.
This treatment is due to the amendment of 1998
to the Civil Status Act, before which stillborn
babies were registered in the “registry of deaths,”
and name registration was not permitted. There
are also trends in other countries, allowing thenaming of stillborn babies.The Amendment of1995 to the Civil Status Registry Ordinance in
Switzerland15 and the amendment of 1999 to the
Civil Status Registry Act in Austria both allow
parents to name their stillborn babies.16
The treatment of miscar ried fetuses isgoverned by the Executive Order. Article 31 (3) ofthe Executive Order, as amended in 2013, allows
parents to notify the Civil Status Registration
Office of their miscarried baby, if they wish toreceive an official certificate, even if they are
not allowed to register the civil status of theirdeceased child.17 This certificate includes entries
for the child’s name, along with the date, time,and place of birth, and its sex (although parents’
notification of miscarried fetuses is voluntary,and the certificate does not have legal force).
Before the amendment of 2013, miscar ried
fetuses simply “[could] not be registered for civil
status” without a proviso, and except for changes
in the criteria based on weight for the stillbirth/miscarriage classification, no major revisions
were made in the treatment of miscarried fetuseson the Civil Status Register.18
2-2．Burial law provisions
In Germany, burial is governed by state law,19
which mainly includes the following provisions:- Obligation and parental right to bury thedead fetus- The manner of disposal of any dead fetus
whose parents decline to bury it- Obligation of medical institutions to explain
the burial of dead fetuses- Treatment of artificially aborted fetuses

Current Methods of Dead Fetus Disposal in Germany and Their Implications for Japan ﻿

Not every state employs these provisions, andburial laws vary considerably among them.
However, almost all states have def ined astandard in terms of weight or gestation period.
If the dead fetus meets the standard, “burial
obligation” is imposed upon the parents, and, if it
does not, “the right of burial” is granted to them,
if they wish. In what follows, the expressions“the obligation and the right of parents to bury
the dead fetus,” “the manner of disposal of thedead fetus whose parents decline to bury it,”and “treatment of artificially aborted fetuses”
are explained. In so doing, let us examine theobligation of medical institutions to explain theoptions for the burial of dead fetuses to parents.
Parents’ obligation and right to bury
their dead fetus
In Japan, fetuses that die at the fourth month ofgestation or later are treated in the same manneras other corpses in terms of burial, according
to the Cemetery and Burial Act. However, most
German states use the weight of the fetus rather
than the gestation period as the standard for
deciding the required burial treatment. Presently,
9 out of the 16 states in Germany20 impose an
obligation for parents to bury a dead fetus if itweighs 500 grams or more, and if a dead fetus
weighs less than 500 grams, parents have theright to bury their dead fetus if they so wish. To
illustrate this, let us consider provisions includedin the Baden-Württemberg State Burial Act21 as
one of the states with the most comprehensive
regulations:
Article 30. Burial Obligation of the BadenWürttemberg State Burial Act
1. Corpses shall be buried. This includes
babies born dead weighing 500 grams ormore and fetuses dead at birth (i.e., stillborn
fetuses).
2. Miscarried fetuses are babies born dead,weighing less than 500 grams, and fetusesborn dead at birth. Miscarried fetuses canbe buried at the expense and request of
the parents. Article 46 (4) and Article 47
apply to this case. If delivery is conductedin a medical institution, the manager ofthe institution shall ensure an explanation
regarding the availability of burial is given
to at least one of the parents.

Yoshichika MORI

3. All artificially aborted fetuses (aborted
fetuses) shall be regarded as miscarriedfetuses and shall be treated according to
the provisions stipulated in the second andthird sentences of Paragraph 2. If at least
one of the parents does not express theirwill as per the second sentence of Paragraph2, miscarried fetuses and aborted fetuses
shall be collected and buried by a medical
institution under dignified conditions. The
manager of the institution shall bear thiscost.
4. Miscarried and aborted fetuses that are
unburied can be used only for academic
purposes. To use a dead fetus for academic
purposes, prior consent shall be obtained
from the parents. If miscarried and aborted
fetuses are no longer to be used for academic
purposes, the academic institution shall takecare of miscarried and aborted fetuses.
The Baden-Württemberg State Act provides
for the burial of dead fetuses in Article 30 fromparagraphs (1) to (4). Paragraph 1 provides forthe obligation to bury stillborn babies (weighing
500 grams or more), while the second sentenceof Paragraph 2 provides for the right to bury
miscarried fetuses (weighing less than 500
grams). Paragraph 3 stipulates that aborted
fetuses shall be treated in the same way as
miscarried fetuses. The yardstick of 500 grams
in weight is based on the measure for thestillbirth/miscarriage distinction prescribed in the
Executive Order for the Civil Status Act prior to
the amendment of 2018.
Of the remaining seven states, four22 require
the burial of fetuses weighing 1000 grams or
more, while recognizing parents’ right to bury
fetuses weighing less than 1000 grams.23 Threestates (Hesse, North Rhine-Westphalia, andBavaria) use uniquely different measures. Hesse
requires the burial of fetuses weighing 500 grams
or more or at 24 weeks of gestation or morewhile recognizing parents’ right to bury fetuses
that meet neither of these conditions. North
Rhine-Westphalia, meanwhile, does not imposea burial obligation on parents but recognizes
parents’ right to bury their dead fetuses, whether
miscarried or stillborn.
Bavaria has the most stringent regulations
for the burial of dead fetuses. The Bavarian State
15

Journal of Philosophy and Ethics in Health Care and Medicine, No. 14, December 2020

Burial Act 24 defines stillborn babies as thoseweighing 500 grams or more and miscarriedfetuses as those weighing less than 500 grams,with parents having the same obligation to bury
their fetus as other corpses if it is stillborn,
and the same right to bury their fetus, if it is
miscarried. These regulations are common to
those of Baden-Württemberg and the other states
mentioned above. However, the Bavarian State
Burial Act further dictates that parents “mustput their miscarried fetus to rest in a cemetery”
if they cannot bury it. If, however, parents areunable to “put it to rest in a cemetery,” themedical institution is obliged to do so. Thus,
Bavaria requires that all parents perform somefor m of burial for their dead fet uses. The
distinction between “burial” and “putting a deadfetus to rest in a cemetery” can be explained in
the following way: “burial” refers to the burialof the dead body or ashes in an individual burial
plot in the same way as other corpses. In contrast,“putting a dead fetus to rest in a cemetery” does
not refer to burial in an individual burial plot;rather, the fetus is buried in a common grave,
together with the corpses and ashes of several
other dead fetuses.25
In relation to parents’ right to burial of a
fetus, some states obligate medical institutions
to explain to the bereaved parents that they areallowed to bury their dead fetus. This is laid out
in the third sentence of Paragraph 2 of Article 30of the Baden-Württemberg State Burial Act (“Ifdelivery is conducted in a medical institution,
the manager of the institution shall ensure an
explanation for the availability of burial is given
to at least one of the parents”). Presently, 9 outof the 16 German states require that such an
explanation be provided by the relevant medical
institution.26
Disposal methods for dead fetuses
unburied by their parents
Let us review the treatment cases where theparents do not wish to bury their deceased fetus
or exercise the right to bury it. Presently, 9 out of
the 16 states in Germany impose an obligation
on medical institutions to bury such fetuses.27
Five states impose an obligation on medical
institutions to dispose of or incinerate thesefetuses, instead of requiring that they be buriedby these institutions.28 For example, Paragraph16

2 of Article 15 of the Berlin State Burial Act 29
states that “if stillborn babies weighing less than
1000 grams or miscarried fetuses are not buried,they must be disposed of by the institution inwhich they are born or the custodian thereof ina sanitary and morally appropriate manner, as
long as they are not used for academic purposes.”Hesse and Schleswig-Holstein have no legal
provisions for dead fetuses that are not buried.
Some states provide regulations in theirburial laws for the use of dead fetuses forresearch purposes. Needless to say, they do notprovide concrete guidelines regarding specificresearch uses, but do stipulate regulations
concerning burial. These are exemplified by therequired consent for the research use of deadfetuses and their burial after the research in
Paragraph 3 of Article 30 of the aforementioned
Baden-Württemberg State Burial Act. Elevenstates have provisions that limit (this may bebetter phrased as “only give reference to”) the useof unburied dead fetuses for academic purposes,30
of which Baden-Württemberg and Bavaria are
two states that specifically require the consent
of parents or a person entitled to dispose of deadfetuses and their burial after research use.
Provisions for aborted fetuses
In Germany, abortion is allowed at up to 12
weeks of gestation, for example, after a legallyrequired consultation. Abortion after 12 weeks
of gestation may also be allowed if there is a
medical indication that continued pregnancy may
endanger the woman’s life; thus, in the case ofa late-term abortion following such a medical
indication, the baby may weigh more than 500
grams. As mentioned above, there is no such
category as “aborted fetuses” under the Executive
Order for the Civil Status Act, and an aborted
fetus is included in either the stillborn fetuses
or miscarried fetuses category, depending onwhether it weighs 500 grams or more.
However, many states’ burial laws provide
for the treatment of aborted fetuses separatelyfrom stillborn or miscarried fetuses. Hesse is
the only state that does not have a clear state
law on the treatment of aborted fetuses. In thiscase, it is reasonable to think that aborted fetuses
are treated in the same way as dead fetusesin general, according to Hesse’s stipulation ofeitherweighing 500 grams or being at 24 weeks

Current Methods of Dead Fetus Disposal in Germany and Their Implications for Japan ﻿

Table 1.

Yoshichika MORI

Provisions for the disposal of dead fetuses in the burial laws of each German state

State

Weight or gestational ageof the fetus at which theparents’ obligation forburial arises

Medicalinstitution’s
Treatment
Provisions forobligation toof unburied
research use **explain parents’ dead fetuses*
right to burial

1

Baden-Württemberg

500g

○

○

○

2

Bavaria

500g(Fetuses weighing lessthan 500g are put to restin a cemetery)

○

○

○

3

Berlin

1000g

○

△

△

4

Brandenburg

500g

○

△

△

5

Bremen

1000g

○

○

△

6

Hamburg

1000g

－

○

△

7

Hesse

500g or 24 weeks ofgestation

－

－

－

8

Lower Saxony

500g

○

△

△

9

Mecklenburg-West
Pomerania

1000g

○

○

△

10 North Rhine-Westphalia (Right to burial only)

○

○

－

11 Rhineland-Palatinate

500g

○

○

－

12 Saarland

500g

－

△

△

13 Saxony

500g

－

○

△

14 Saxony-Anhalt

500g

－

△

△

15 Schleswig-Holstein

500g

○

－

－

16 Thuringia

500g

－

○

△

* ○: Burial by medical institution△ : Disposal and incineration by medical institution－ : No provisions** ○: Consent provisions in burial law △ : Reference to research use only － : No provisionsof gestation.
Five of the remaining 15 states, excluding
Hesse, impose an obligation on parents andmedical institutions for complete burial—that
is, that all aborted fetuses must be buried insome way.31 Of these, Bavaria, as in the case of
miscarried fetuses weighing less than 500 grams,
grants burial rights to parents and requires themto put their aborted fetus to rest in a cemetery,even if they do not bury it. If parents cannot place
the fetus in a cemetery, the medical institution
is obliged to do so. Baden-Wü r t temberg,
Rhineland-Palatinate, and Saxony are the threestates that recognize parents’ burial rights for allaborted children, and, if the child is not buried by
the parents, the medical institution is obliged to
do so. Hamburg does not specify parents’ burial
obligation or rights, but Hamburg does impose aburial obligation on medical institutions.
Four states impose an obligation on parents
or medical institutions for partial burial: If theaborted fetus meets certain criteria, the parents
or medical institution are required to bury it;
if it does not, the fetus is either incinerated
or discarded. 32 In Lower Saxony, parents are
obliged to bury their aborted fetus if it weighs
500 grams or more, and the parents have theright to bury it if it weighs less than 500 grams;
the fetus is incinerated if it is not buried by theparents. Bremen, Mecklenburg-West Pomerania,
and Thuringia have adopted similar standards.
Bremen and Mecklenburg-West Pomerania
recognize parents’ right to bury their fetuses
after 12 weeks of gestation and impose a burial
obligation on the medical institution if a fetus
is not buried by the parents. Further, neither
state recognizes parents’ right to bury any fetus
aborted before it had reached the 12th week ofgestation. While Bremen recognizes the medical
institution’s burial right, Mecklenburg-West
Pomerania requires that the fetus be incinerated.
Finally, Thuringia acknowledges parents’ burial
17

Journal of Philosophy and Ethics in Health Care and Medicine, No. 14, December 2020

right, regardless of the gestational age of the
fetus, and if it is not buried by the parents, thestate requires the medical institution to bury it if
it is over 12 weeks of gestation and to dispose of
it if it has not reached this point.
Four states recognize parents’ burial rights
only and do not specify a burial obligation. 33
North Rhine-Westphalia, Saxony-Anhalt, andSchleswig-Holstein recognize parents’ right tobury their aborted fetus, regardless of weight andgestational age, and, if the fetus is not buried, it
is discarded. Saarland specifies that the burial ofan aborted fetus weighing less than 1,000 grams
may be waived at the express wish of one parent
if the other parent does not object it. If the fetus is
not buried, it is discarded.
Neither Berlin and Brandenburg specify
either burial rights or burial obligation and,instead, provide for disposal. Both states requirethat aborted fetuses be disposed of by the medical
institution in the same manner as miscarried andstillborn fetuses are disposed of when they are
not buried.

3. Meaning of burying dead fetuses
Up to this point, we have seen the practices forhandling dead fetuses in Japan and Germany.
Here, let us consider the meaning of burying
dead fetuses by reviewing Germany’s burial
law reforms. Until the early 1990s, Hamburg
and Bremen were the only two German statesthat specified parents’ right to bury their deadfetus when there were no burial obligations.
Both states amended the burial law to enshrine
the burial right in response to strong requests
by parents who had experienced a stillbirth or
miscarriage to bury their dead fetuses.34 In otherstates, it was common practice to discard deadfetuses that did not meet the criteria. Article
30 of the earlier cited Baden-Württemberg
State Burial Act included the following proviso
before its amendment in 200935 —here, there is
no provision for the right to bury miscarried oraborted fetuses:
Former Article 30: Burial Obligation in the
Baden-Württemberg State Burial Act
1. All corpses must be buried.
2. Miscarried fetuses and excised body parts
that are not buried shall be disposed of in a18

sanitary and morally appropriate manner,
as long as they are not used for academic
purposes.
Si m ila rly, u nt il re ce ntly, t he R h i nela ndPalatinate State Burial Act 36 had no provisions
for the treatment of dead (miscarried or aborted)
fetuses unburied by their parents; however, anamendment at the end of 2014 obligated medical
institutions to bury such fetuses and required
the place of burial to be recorded if the medical
institution buried them (Paragraph 2 of Article 8of the Rhineland-Palatinate State Burial Act). The
significance of recording the place of burial isthat it aims not only to ensure strict control over
the treatment of dead fetuses but also to allow
parents who did not initially wish to bury theirchild to visit the place of burial if they should
later ask for a place to grieve. The emotionsof those who have exper ienced stillbi r th,
miscarriage, or abortion are very complex andcould be expressed as “unauthorized grief ”37
or “loss covered by taboos.”38 To acknowledge
the right to name not only stillborn but also
miscarried fetuses and the right to bury deadfetuses that do not meet the stipulated criteria is
to socially acknowledge the existence of children
who died before birth. Amendments to theGerman Civil Status Act and Enforcement Orderand reforms to the state burial laws with regard
to the treatment of dead fetuses have been madeprimarily in light of the need to care for families
who have experienced the loss of such a child.
In Japan, the Cemetery and Burial Act treatsa dead fetus as a corpse if it dies in the fourth
month of gest ation or later. Compared toGermany, where half of the states impose thesame burial obligations as those for corpses if thedead fetus weighs 500 grams or more (around24 weeks of gestation), the Japanese criteria
are stricter. However, the criteria of being in
the fourth month of gestation or later have beenin place since the beginning of modern statepolicy for cemeteries in the Meiji era 39 and did
not originate from the perspective of parental
and familial care. Furthermore, it is generally
impossible for parents to name their dead fetuses
and officially register their names in any way.
As mentioned above, recommendations madeby the Ministry of Health, Labor and Welfare
in 2004 did not deal with the treatment of deadCurrent Methods of Dead Fetus Disposal in Germany and Their Implications for Japan ﻿

fetuses before the fourth month of gestation in
general, but only with artificially aborted fetuses
before the fourth month of gestation, nor did
they recognize parents’ right to bury fetuses
that are artificially aborted before the fourth
month of gestation or miscarried fetuses. The
phrase “pertaining to the dignity of life” in therecommendations must also be noted.
There is a risk that imposing an obligation
to bury aborted fetuses on their parents as“pertaining to the dignity of life” may serve,in effect, to tighten abortion regulations. It is
important to adopt the perspective of burial
as parents’ right and that disposal should beaccording to the parents’ wishes.

Conclusion
We have examined regulations regarding thedisposal and burial of dead fetuses in Japan
and Ger many. In Ger many, refor ms to the
Civil Status Act and the Executive Order havebeen undertaken from the 1990s to the present,
triggered by movements led by parents who had
experienced miscarriages or stillbirths and selfhelp groups. These reforms enabled registrationof stillborn babies on the register of births,
as well as the naming of stillborn babies andmiscarried fetuses. Burial laws in each state havealso been amended since the late 1990s to enable
the recognition of parents’ right to bury theirdead fetuses that do not meet the burial criteria.
In Japan, medical practice and research
related to care for parents who have experienced
miscarriage or stillbirth are also underway.
However, there has not yet been a strong callfor institutional changes, for example, to keep
the names of children born dead in official
documents or to oblige medical institutions to
explain the options for their disposal. However,despite the silence concerning institutionalchanges, the grief of bereaved parents is of course
serious. We must also reflect on the fact that thepractice of disposing of dead fetuses in Japan has
not been seen as a bioethical problem, despite thefact that embryo use and abortion are consideredbioethical issues.
Some have argued that abortion should bebanned because fetuses have dignity equal to thatof fully developed humans. However, the claimthat the fetus should be disposed of in the same

Yoshichika MORI

manner as those who were born alive and died is
not necessarily popular. Conversely, even if weendorse the claim that fetuses do not have equaldignity to humans, there should be a debate as
to whether dead fetuses may be treated as waste.
The review of institutional reforms in Germany
from the 1990s to the present day and the generalabsence of equivalent institutional reforms inJapan seems to show that the question of how
dead fetuses should be disposed of has long beenforgotten in Japan.
Endnotes
1 For recent research on the treatment of dead fetuses
including the issue of research use, see M. Kokado.
Shibou taiji no houteki na toriatsukai ni tsuite:
itai toshite no songen to kansensei haikibutsu
to no aida de [Legal treatment of dead fetuses:
Between dignity as a corpse and infectious waste],
Josan Zasshi, Vol.60, No.2, 2006, pp.172-175; andM. Tamai and S. Hiratsuka (Editors), Suterareru
inochi, riyou sareru inochi: taiji soshiki no kenkyu
riyou to seimei rinri [Life abandoned, life utilized:
Research use of fetal tissue and bioethics], Tokyo:
Seikatsu Shoin, 2009. The following book is
particularly informative regarding the situationin France: Y. Yamamoto, Shizanji ni naru: france
kara yomitoku “shiniyuku taiji” to seimei rinri[Having aSstillbir th: Understanding “Dying
Fetuses” from Cases in France and Bioethics],
Tokyo: Seikatsu Shoin, 2015.
2 An obstetrician at the (now defunct) Isesaki
Clinic in Yokohama City disposed of fetuses andplacentas after abortion as general waste, rather
than as infectious waste, as stipulated by law. This
event was widely reported in newspapers and on
television because abortion itself was treated as an
ethical taboo in Japan at that time. The doctor wasconvicted of violating the Waste Disposal Act in2005.
3 Ninshin 4 kagetsu (12 shu) miman no chuzetsu
taiji no toriatsukai ni kansuru chosa kekka nado
ni tsuite [Sur vey results on the treatment ofaborted fetuses in less than 4 months of gestation](Kojibohatsu No. 1012002, October 12, 2004).
Refer to the following website for survey results:
http://www.mhlw.go.jp/houdou/2004/09/dl/h09243a.pdf (Last accessed July 16, 2020)
4 The Japan Society of Obstetrics and Gynecology.
19

Journal of Philosophy and Ethics in Health Care and Medicine, No. 14, December 2020

5

6

7

8

20

Shibou shita taiji/shinseiji no zouki nado wokenkyu ni mochiiru koto no zehi ya kyoyou hanni
ni tsuite no kenkai [Pros and cons for using organs
from dead fetuses and newborns for research
and a view on their permissible use]. Journal of
Obstetrics and Gynecology Research, Vol.39,
No. 1, 1987, p.10 [in Japanese]. These guidelines
stipulate that the Postmortem Examination andCorpse Preservation Act shall be followed, that
research shall be conducted by physicians, consent
shall be obtained from the parents, and the privacyof the fetus, newborn, and the parents shall be
respected. Caveats were added to these guidelines
in 2001.
Hito kan saibou ni mochiiru rinshou kenkyu ni
kansuru shishin [Guidelines for human stem cellbased clinical research] (Ministry of Health,Labour and Welfare, Notification No. 425, July
3, 2006). These guidelines were reviewed intheir entirety in 2010 and 2013. In both renewals,
clinical research using fetus-derived stem cells
was excluded from the scope of the guidelines.
Note that these guidelines expired in 2014 withthe enactment of the new Act on the Safety ofRegenerative Medicine.
Gesetz zur Reform des Personenstandsrechts vom
19. Februar 2007 [Act to Reform of the Civil Status
Act of 19 February 2007], BGBl. I 2007, p. 122;
last amended by Article 88 of Verordnung vom
19. Juni 2020 [the Order of 19 June 2020], BGBl.
I 2020, p. 1328. The Civil Status Act corresponds
to Japan’s Family Register Act. The civil status
regist ration system differs g reatly bet ween
Germany and Japan; however, we will not discussthese differences here.
Verordnung zur Ausführung des Personenstandsgesetzes vom 22. November 2008 [Executive Orderfor the Civil Status Act of 22 November 2008],
BGBl. I 2008, p. 2263; last amended by Article 89
of Verordnung vom 19. Juni 2020 [the Order of 19
June 2020], BGBl. I 2020 p. 1328.
Gesetz über die Spende, Ent nah me u ndÜbertragung von Organen und Geweben vom 4.
September 2007 [Organ and Tissue Donation Act,
removal and transplantation of 4 September 2007],
BGBl. I 2007, p. 2206; last amended by Article 16
of Gesetzes vom 19. Mai 2020 [the Act of 19 May
2020], BGBl. I 2020 p. 1018. Although several
amendments have been made since 2007, the article
regulating the procedure for the procurement oforgans and tissues from dead embryos and fetuses

has not been amended.
9 Bundesärztekammer, “Richtlinien zur Verwendungfetaler Zellen und fetaler Gewebe,” [German
Medical Association, “Guidelines for the Use of
Fetal Cells and Tissues”] Deutsches Ärzteblatt,88(48), 1991, p. A4296-A4301. Note that theseguidelines from the German Medical Association
have now been revoked.
10 Verord nu ng z u r Ausf ü h r u ng des Personenstandsgesetzes vom 12. August 1957 [Executive
Order for the Civil Status Act of 12 August 1957],
BGBl. I 1957, p. 1139.
11 Sechste Verordnung zur Änderung der Ausführungdes Personenstandsgesetzes vom 23. April 1979
[Sixth Order to Reform of the Executive Orderfor the Civil Status Act of 23 April 1979], BGBl. I
1979, p. 493.0
12 D r ei z eh nt e Ve rord nu ng z u r Ä nde r u ng de r
Ausführung des Personenstandsgesetzes vom 24.
März 1994 [Thirteenth Order to Reform of the
Executive Order for the Civil Status Act of 24
March 1994], BGBl. I 1994, p. 621.
13 Erste Verordnung zur Änderung der Ausführungdes Personenstandsgesetzes vom 24. Oktober 2018
[First Order to Reform of the Executive Order for
the Civil Status Act of 24 October 2018], BGBl. I
2018, S. 1768.
14 More accurately, “at the request of the person
who should be g ranted personal custody(Personensorge), if the child was born.” Since,
however, the person who takes custody of the childis normally the parent, we use the phrase “at theparents’ request” here.
15 Zivilstandsverordnung vom 28. April 2004 [Civil
Status Registry Ordinance of 28 April 2004], SR
211.112.2. In Switzerland, stillborn fetuses aredefined as dead fetuses weighing 500 grams ormore or at 22 weeks of gestation or later.
16 Bundesgesetz über die Regelung des Personenstandswesens [Civil Status Registry Act], BGBl.
Nr.16/2013. In Austria, stillborn fetuses are definedas dead fetuses weighing 500 grams or more.
17 Ge set z z u r Ä nde r u ng de r p e r sone n st a nd srechtlicher Vorschriften vom 7. Mai 2013 [Actto the Amendment of the Executive Order for
the Civil Status Act of 7 May 2013], BGBl. I
2013, p. 1122. It should be noted that Austriaand Switzerland also made amendments to theirregulations in 2016 and 2018, respectively, and,in much the same way as in Germany, parents areallowed to register a miscarriage if they so wish

Current Methods of Dead Fetus Disposal in Germany and Their Implications for Japan ﻿

18

19

20

21

22
23

24

25

and to include the name of the miscarried fetus in
the notification form.
This amendment was based on the petition of
one couple who experienced a miscarriage andstillbir th. The petition called on the Federal
Parliament to amend the law in order to allow
for the registration of the civil status of all bornchildren, regardless of their weight. For a detailed
description of the petition, see the following article
by the individuals in question: Barbara und Mario
Martin, Fest im Herzen lebt ihr weiter [Firmly in
Our Heart You Live on], Aßlar: adeo Verlag, 2014,
pp. 117-118.
The term Bestattung (“burial”) in German burial
law refers to the burial of a dead body in general,
including not only the procedure of placing the
body in the coffin and burying it in the ground, butalso other procedures such as cremation. Whether
ash scattering is allowed or not depends on theburial laws of each state; however, due to space
limitations, we will not distinguish between burial
methods here.
T hese n i ne st ates a re Baden-Wü r t temberg,
Brandenburg, Lower Saxony, Rhineland-Palatinate,
Saarland, Saxony, Saxony-Anhalt, SchleswigHolstein, and Thuringia.
Gesetz über das Friedhofs- und Leichenwesen vom
21. Juli 1970 [Cemeteries and Corpses Act of 21
July 1970], GBl. p. 395; last amended by Gesetz
vom 11. Februar 2020 [Act of 11 February 2020],
GBl. p. 37.
These four states are Berlin, Bremen, Hamburg,and Mecklenburg-West Pomerania.
It shou ld b e not e d , howeve r, t h at Br e me nrecognizes parents’ right to bury a fetus if itweighs less than 1000 grams and is over 12 weeks
of gestation, although it does not recognize theright to bury the fetus if it is in the 12th week ofgestation or earlier.
Bestattungsgesetz vom 24. September 1970 [Burial
Act of 24 September 1970], GVBl. p. 417; last
amended by Verordnung vom 22. Juli 2014 [theOrder of 22 July 2014], GVBl. p. 286.
Refer to the following website and article: https://www.stmgp.bayern.de/service/buerger-fragenwir-antworten-faqs/ (Last accessed July 16, 2020);
Cathleen Severin. Die Rechtsstellung der Eltern
und die Rechtslage verstorbener Kinder im Falle
von Fehlgeburt und Schwangerschaftsabbruch[The Legal Status of Parents and the Legal Positionof Deceased Children in the Event of Miscarriage

26

27

28
29

30

31
32
33
34

35

36

37

Yoshichika MORI

and Termination of Pregnancy], Hamburg: Verlag
Dr. Kovač, 2010, p. 62.
T hese n i ne st ates a re Baden-Wü r t temberg,
Bavaria, Berlin, Bremen, Mecklenburg-West
Po m e r a n i a , L owe r S a xo n y, No r t h R h i n e Westphalia, Rhineland-Palatinate, and SchleswigHolstein.
These nine states are Baden-Württemberg, Bavaria,
Bremen, Hamburg, Mecklenburg-West Pomerania,
North Rhine-Westphalia, Rhineland-Palatinate,
Saxony, and Thuringia. Of these states, North
Rhine-Westphalia requires medical institutions toincinerate dead fetuses if their parents refuse forthe institution to carry out a burial.
These five states are Berlin, Brandenburg, Lower
Saxony, Saarland, and Saxony-Anhalt.
Gesetz über das Leichen- und Bestattungswesen
vom 2. November 1973 [Corpses and Funerals Act
of 2 November 1973], GVBl. p. 1830; last amendedby Gesetz vom 15. Dezember 2010 [Act of 15
December 2010], GVBl. p. 560.
These eleven states are Baden-Württemberg,
Bavaria, Berlin, Brandenburg, Bremen, Hamburg,
Mecklenburg-West Pomerania, Saarland, Saxony,
Saxony-Anhalt, and Thuringia.
These five states are Baden-Württemberg, Bavaria,
Hamburg, Rhineland-Palatinate, and Saxony.
These four states are Bremen, Mecklenburg-West
Pomerania, Lower Saxony, and Thuringia.
These four states are North Rhine-Westphalia,
Saarland, Saxony-Anhalt, and Schleswig-Holstein.
Cathleen Severin, op. cit., p. 11. Refer also to thefollowing article: Stephen Rixen, “Die Bestattung
fehlgeborener Kinder als Rechtsproblem [Theburial of miscarried children as a legal problem],”Zeitschrift für das gesamte Familienrecht 41, 1994,
pp. 417-425.
Gesetz über das Friedhofs- und Leichenwesen
vom 21. Juli 1970 [Cemeteries and Corpses Act of
21 July 1970], GBl. p. 395. Note that Article 30 of
the Baden-Württemberg State Burial Act was also
amended in 2014, but it was not until 2009 thatparents’ right of burial was put into statutory form.
Bestattungsgesetz vom 4. März 1983 [Burial Act
of 4 March 1983], GVBl. S. 69; last amendedby Gesetz vom 19. Dezember 2014 [Act of 19
December 2014], GVBl. S. 301.
Sakaguchi, Y. Shibetsu no kanashimi ni mukiau:
grief care towa nanika [Facing the g r ief ofbe reaveme nt: W hat is g r ief ca re?]. Tok yo:
Koudansha, 2012, p.22 [in Japanese]21

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38 Cathleen Severin, op. cit., 249.
39 Article 11 of the 1884 “Detailed Standards for the
Enforcement of the Cemetery and Burial Control
Regulations” (Notified by the Ministry of theInterior on November 18, 1884, Otsu No. 40) sets
out the procedures required for the burial of deadfetuses in the fourth month of gestation or later.
This was succeeded by the Cemetery and Burial
Act, but the requirement of fetuses being in the
fourth month of gestation or later has not changed
to date.
* This article is an English version of the followingar ticle: Yoshichi ka MOR I, Doitsu ni oker u
shibou taiji no syobun no arikata, Igakutetugaku
Igakurinri [Annals of the Japanese Association for
Philosophical and Ethical Researches in Medicine],
Vol.33, 2015, pp.1-9.

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