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Should Abortion Be Decriminalized in Korea?

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Should Abortion Be Decriminalized in Korea? 한국의료윤리학회지 제21권제2호(통권 제55호) : 129-142 ⓒ한국의료윤리학회, 2018년 6월 Korean J Med Ethics 21(2) : 129-142 ⓒ The Korean Society for Medical Ethics, June 2018 pISSN 2005-8284 eISSN 2234-3598 투고일: 2018년 5월 28일, 심사일: 2018년 5월 30일, 게재확정일: 2018년 6월 13일 Should Abortion Be Decriminalized in Korea? John McGuire* I. INTRODUCTION petition to the Court, with over 1 million signa- tures on it, urging the Court not to decriminal- The Constitutional Court of Korea is currently ize abortion, Korean women’s groups, such as reviewing a case brought by a Korean doctor who Womenlink and Korea Women’s Hot Line, have is challenging the constitutionality of Korea’s been actively campaigning against the current laws criminal laws on abortion. Not surprisingly, the [2,3]. And although a group of almost 100 pro-life case has exposed deep divisions within Korean so- university professors, have written to the court in ciety and has also attracted considerable attention support of the existing laws on abortion, another from interested groups abroad. While the Korean group of over 100 researchers from the fields of Ministry of Defense has spoken out in favor of the bioethics, philosophy, and theology released a country’s existing abortion laws, the Ministry of public statement calling for the abolition of those Gender Equality has written to the Constitutional laws [1,4]. The international NGO Human Rights Court in opposition to the existing laws, claiming Watch has also weighed into the controversy by that the laws prohibiting abortion are being used submitting an amicus brief urging the Court to against women and are inconsistent with Korea’s decriminalize abortion and ensure safe and legal international treaty obligations, including those access for women in need of abortions [5]. specified in the Convention on the Elimination The Constitutional Court is now tasked with of All Forms of Discrimination against Women, making a legal decision on one of the most divisive which Korea ratified in 1984 [1]. Similarly, while issues in medical ethics. However, as I will argue the Catholic Bishop’s Conference has delivered a below, the key ethical issue at the heart of this 교신저자: John McGuire. 한양대학교 국제학부. Tel: 02-2220-2282. Fax: 02-2220-0289. e-mail: [email protected] ORCID: https://orcid.org/0000-0001-5133-7883 * 한양대학교 국제학부 129 한국의료윤리학회지 제21권 제2호(통권 제55호) : 2018년 6월 case—whether the practice of abortion in Korea which were amended in 1995, state that women should be decriminalized—need not be divisive who procure their own abortions through the use at all. The fact that it is so polarizing is largely the of drugs or other means may be fined or impris- result of a particular way of approaching the issue oned for up to one year, while doctors, midwifes of abortion, one which is neither necessary nor or others who perform abortions may be fined desirable from the point of view of ethical prog- or imprisoned for up to two years and have their ress. When abortion is seen as a conflict between licenses suspended for up to seven years [6]. The competing sets of rights—the right to life of the Mother and Child Health Act, enacted in 1973 and unborn versus a woman’s right to privacy or self- later amended in 2009, introduced certain excep- determination—the inevitable result is not so tions to the general ban on abortion set out in the much a moral dilemma as it is a moral impasse Criminal Code. Article 14 of this Act, “Limited or dead-end. However, as I will argue below, there Permission for Induced Abortion Operations” al- is a way out of this impasse, a way of approach- lows doctors to perform abortions but only when ing the key ethical question that does not involve one or more of the following five conditions are adjudicating between competing sets of rights or met: (a) the woman or her spouse suffers from a prioritizing one over the other. It is possible, I will eugenic or genetic or mental handicap or physical argue, to approach the decriminalization ques- disease; (b) the woman or her spouse suffers from tion in a fair-minded and objective manner, taking an infectious disease; (c) the woman is impreg- into account both the costs as well as benefits of nated by rape or “quasi-rape”; (d) the woman and maintaining versus repealing the existing laws on her spouse are relatives who are unable to marry abortion. When one does approach the matter in legally; or (e) the maintenance of the pregnancy this fashion, the answer to the question of what injures or might injure the health of the mother’s should be done—what sort of legislation is most body [7]. The Mother and Child Health Act also desirable—is relatively straightforward. requires that doctors who perform abortions in any of the aforementioned circumstances do so II. THE CURRENT LEGAL STATUS only with the consent of both the pregnant woman OF ABORTION IN KOREA and her “spouse” defined in such a way as to in- clude any person having a de-facto marital relation. The Korean Criminal Code, enacted in 1953, There has been no significant change to the laws prohibits abortion under any circumstances and governing abortion in Korea since the Mother specifies the forms of punishment that can be and Child Health Act was first passed in 1973. given both to women who induce their own abor- However, in 2010 a Korean midwife filed a peti- tions as well as to doctors or others who perform tion with the Constitutional Court of Korea (case abortions on pregnant women. The relevant ar- 2010Hun-Ba402) challenging the constitutionality ticles of the Criminal Code, articles 269 and 270, of the Criminal Code’s prohibition on abortion. In 130 John McGuire - Should Abortion Be Decriminalized in Korea? 2012 the Court responded to this petition with a of abortion pills” [3]. In response, the Secretary split-decision, with four judges ruling that articles for Civil Affairs, Cho Kuk, announced that the 269 and 270 of the Criminal Code were constitu- government would launch a fact-finding study in tional, while another four judges insisted that they 2018, collect opinions, and examine the reasons were unconstitutional if interpreted to prohibit for Korea’s ban on abortion. In acknowledging “the even first-trimester abortions [8]. Since a mini- glaring disparity between the strict law and actual mum of six votes were needed to strike down the practices” regarding abortion in Korea, Cho’s re- relevant articles, the constitutional challenge was marks were understood as hinting at the possibil- unsuccessful and the prohibition on all abortions ity that the current administration will endeavor to other than those specified in the Mother and Child revise Korea’s existing laws concerning abortion, Health Act remains in effect in Korea. a suggestion which has led religious and pro-life groups in Korea to speak out in defense of the cur- III. OPPORTUNITIES FOR CHANGING rent ban on abortion [11]. KOREA’S ABORTION LAWS Additionally, as mentioned above, the Constitu- tional Court is currently reviewing, for the second While Korea’s relatively restrictive laws on abor- time, the constitutionality of Korea’s criminal tion have remained stable for the past 45 years, ban on abortion. The case (2017Hun-Ba127) was during this same period there has been a signifi- launched in 2017 following a petition by a Korean cant worldwide trend toward liberalization of doctor who is facing prosecution for performing abortion laws [9]. Ireland, one of the few western abortions [3]. As we will see in more detail below, countries to have maintained a ban on abortion, in its initial ruling in 2012, the Constitutional is the most recent country to vote to liberalize its Court seemed to prioritize the right to life of the abortion laws [10]. Korea too may soon follow fetus over a woman’s right to self-determination. this global trend and decriminalize abortion. Rel- However, the Court is currently staffed by an en- evant legislative changes could come about either tirely new panel of judges, some of whom have through the National Assembly or the Constitu- publicly expressed views that run contrary to the tional Court. Recent developments in Korea make Court’s 2012 ruling. For instance, Justice Lee Jin- either scenario entirely possible. sung, the current president of the Constitutional For instance, in August 2017 the new admin- Court, said in a confirmation hearing in 2012 that istration in South Korea, led by President Moon “Women’s right to self-determination and right Jae-in, announced that that it would respond to to pursue happiness which attempts to protect any petition that receives more than 200,000 sig- themselves from inevitable pregnancies by opt- natures. The next month it received a petition, ing for birth control and abortion should not be signed by more than 235,000 citizens, calling for evaluated as inferior to a fetus’ right to life.” [12]. “the decriminalization of abortion and legalization And the former acting president, Kim Yi-su, has 131 한국의료윤리학회지 제21권 제2호(통권 제55호) : 2018년 6월 stated that “In exceptional circumstances in which must rely on the mother for the maintenance of the pregnancy is in its early stages and the preg- life, it is a living thing separate from the mother nancy is unwanted, there should be cases in which and is very likely to become a human being in women’s right to self-determination should be the absence of any unforeseen circumstances. prioritized.” [12]. Remarks such as these suggest Therefore, the right to life of the fetus must also that the Court may be poised to overturn Korea’s be recognized, and whether a fetus is able to current ban on abortion.
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