Abortion in South Korea

The Korean Criminal Code (1953)

Abortion in South Korea has been made illegal since the introduction of the Korean Criminal Code (also known as The Penal Code in South Korea) in 1953, particularly because of Article 269 and 270 of the Criminal Code.^[6][10] Article 269 outlaws both self-induced abortions by the pregnant woman herself and abortions performed by medical professionals with the pregnant woman's request or consent, stating criminal penalty for each condition.^[6][11] Article 270 specifically prohibits medical practitioners, licensed doctors or other medical professionals from performing abortions, even with the pregnant woman's request or consent.^[6][11] The criminal penalty varies from one year's imprisonment or a fine of 2 million won (approximately $1,750) if the abortion is self-induced by the pregnant woman herself, and ten years imprisonment if the abortion is performed by medical practitioners, with or without the pregnant woman's request or consent, causing the death of the woman.^[6][11] In general, criminal penalties for medical professionals who perform abortions are much stronger than for pregnant women. Additionally, if a doctor is involved in abortion, the license of the doctor will be suspended for a maximum of seven years.^[6]

In 1992, a special congressional committee tried to pass the revised Articles 269 and 270 by introducing lessened thresholds and penalties pertaining to abortion. However, its attempt failed to pass the Conservative-controlled National Assembly.^[6]

The Korean Criminal Code was first introduced in 1953, the year the Korean War ended. The post-war conditions included a drastic population decline and general social instability. Many explanations tracing the history and legislative purpose of Article 269 and 270 propose that the two provisions were designed to address post-Korean War conditions by promoting the sanctity of lives and population growth.^[10]

The Mother and Child Health Act (1973)

Introduced in 1973, the Mother and Child Health Act states five special circumstances under which the abortion is legally allowed.^[10] The five circumstances are:

1. when the pregnant woman or her spouse has any eugenic or genetic disability or disease;
2. when the pregnant woman or her spouse has any infectious disease;
3. when the pregnancy is a result of rape or quasi-rape;
4. when the pregnancy happens between two individuals who are legally unable to marry (such as blood relatives in incestuous relationships);
5. when the continuation of pregnancy could potentially harm the health of the pregnant woman.^[6][10]

However, there are several reasons why the applicability of Mother and Child Health Act might be narrow in practical cases. First, in some cases, the Supreme Court ruled that an abortion was regarded as illegal if the fetus was diagnosed with Down syndrome.^[6] Second, in regards to the third condition (when the pregnancy is a result of rape or quasi-rape), the stigma associated with rape might prevent pregnant women in South Korea from openly seeking legalization of their abortions,^[6] and the legal concept of rape has limited meanings that could potentially dismiss many cases.^[12] Moreover, the Mother and Child Health Act requires spousal consent in for a pregnant woman to obtain a legal abortion based on these circumstances, which might create practical complications for women to obtain legal abortions.^[6] The fifth condition (where the continuation of pregnancy could potentially harm the health of pregnant women) narrows the "harm" of pregnancy to merely harm of the woman's health, ignoring the possible socio-economic reasons for which a pregnant woman might seek an abortion.^[6][12][10]

The Korean Medical Service Act (revisions in 1987 and 1994)

The revision of the Korean Medical Service Act in 1987 prohibits medical practitioners from examining or assisting in examining pregnant women to determine the sex of the fetus.^[12][10] Further, the medical provider is banned from disclosing the sex of the fetus to the pregnant woman, members in her family, or any other people during the pregnancy.^[6][10] Although this provision does not explicitly mention abortion, it potentially prohibits sex-selective abortions that are largely the result of the preference for male children in South Korea. South Korea underwent rapid economic and social development in the 1980s, during which time the birth rate decreased significantly. Many people in South Korea started to determine the sex of the fetus with the help of diagnostic technology, resulting in female feticide.^[12]

In 1994, the Korean Medical Service Act was revised to provide criminal penalties for medical professions. Medical professionals who disclose the sex of the fetus could be punished with a maximum of three years imprisonment or a fine of 10 million won (approximately $8,450).^[12] The South Korean sex ratio at birth (male to female) has changed from 1.14 (114 boys were born at birth for every 100 girls) in 1986 to 1.07 (107 boys were born at birth for every 100 girls) in 2016, which suggests a decline of male preference.^[12]

Growing debate (1994–2019)

Debate concerning the future of abortion regulation in South Korea has gained traction both in internet chatrooms and government offices. Until South Korea's recent ruling that declared anti-abortion laws unconstitutional, the anti-abortion camp in South Korea predominately advocated for a general crackdown on abortions.^[13]

In 2009, legislators took a small step towards cracking down on abortions in South Korea by "removing certain diseases off the list justified for the use of legal abortions and revising the deadline for legal abortions to twenty-four weeks from conception instead of twenty-eight weeks."^[13]

Key political players in South Korea were responsible for extensive anti-abortion campaigns. The Minister of Health, Welfare and Family Affairs, Jeon Jae-hee, stated that "even if [the government doesn't] intend to hold anyone accountable for all ... illegal abortions in the past, [they] must crack down on them from now on." Similarly, Rep. Chang Yoon-seok, of the Grand National Party, stated that "[t]he most important thing will be for the doctors to understand that abortion is a serious crime."^[13]

In January 2010, President Lee Myung-bak decided it was "time to start the debate" on revising the Mother and Child Health Law and scheduled public hearings. This, along with shifting public opinion, encouraged the government to commence a public relations campaign to discourage abortions, which included subway posters that read: "With abortion, you are aborting the future."^[13]

The topic of abortion was never discussed as a human rights issue in South Korea. The National Human Rights Commission (TNHRC), a national advocacy institution for human rights since its founding in 2002, noted that the issue of abortion was a "controversial issue in the 'Right to Life' section of its 2007 National Action Plan."^[13]

Aside from TNHRC, major non-governmental human rights advocacy groups, like Minbyun–Lawyers for a Democratic Society and People's Society for Participatory Democracy, have ignored the issue.^[13]

Obstetricians later emerged as a powerful voice for anti-abortion sentiment in Korea as a product of ethical and moral concerns.^[14]

Much of the ensuing debate has focused on whether the government should crack down on illegal abortions, and whether the law should be modified.^[9][6] In September 2017, campaigners filed a petition on the website of Moon Jae-in, the President of South Korea, calling on the government to amend the law by permitting the sale of the abortion pill mifepristone.^[8] The petition was signed by more than 235,000 people.^[15] In November 2017, the office of the president announced in response that the government would review the abortion law.^[16]

In late 2018, a poll released by the Korea Institute for Health and Social Affairs revealed that 75% of women aged 15 to 44 thought of abortion law as unfair and wanted it to be revised.^[17][15] Among the respondents, 20% of women stated that they had obtained an abortion even though it was illegal.^[17]

Constitutional Court ruling decriminalizing abortion (April 11, 2019)

In 2018, the Constitutional Court heard a case which challenged the constitutionality of the abortion law.^[18][19] The court's ruling was delayed until court vacancies were filled.^[20]

On April 11, 2019, seven out of nine judges in the Constitutional Court of Korea ruled that criminalizing abortion in South Korea is unconstitutional. The Court granted lawmakers until December 31, 2020, to revise the laws, until which time the provisions of the Korean Criminal Code would remain in effect.^[21] If legislators did not successfully revise the abortion law before this deadline, the provisions in the Korean Criminal Code that criminalize abortion in South Korea would become null and void.^[17][15]

In October 2020, the government announced draft legislation that would decriminalize abortion until the 14th week of the pregnancy. In addition, abortions between the 14th and 24th week would be permitted if the pregnancy was due to rape or for social, economic, or health reasons.^{[22][23][24][25]} In January 2021, the legislative measures were passed.^[26]