(Mar. 18, 2021) Abortion became decriminalized in South Korea effective January 1, 2021, when the provisions of Act No. 293, the Criminal Act, that criminalized abortion became invalid. (Criminal Act, Act No. 293, Sept. 18, 1953, arts. 269–270, amended by Act No. 5057, Dec. 29, 1995.)
The decriminalization of abortion was the effect of a Constitutional Court decision of April 11, 2019. (2017Hun-Ba127 (Const. Ct., Apr. 11, 2019) (English translation).) In the case before the Constitutional Court, a doctor who had performed an abortion was charged with the crime of “abortion by the medical profession with the woman’s consent.” (Criminal Act art. 270, para. 1, as amended.) While her case was still pending before the trial court, she filed a motion to request the trial court to refer the case to the Constitutional Court for review of the constitutionality of the Criminal Act provisions that criminalize abortion.
The provisions in question were as follows:
Article 269 (Abortion)
(1) A woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding 2 million won [about US$1,770].
. . . .
Article 270 (Abortion by Doctor, etc., Abortion without Consent)
(1) A doctor, herb doctor, midwife, pharmacist, or druggist who procures the miscarriage of a woman upon her request or with her consent, shall be punished by imprisonment for not more than two years.
A separate law provides exceptions in the following cases:
- Where she or her spouse suffers from any eugenic or genetic mental disability or physical disease prescribed by Presidential Decree;
- Where she or her spouse suffers from any contagious disease prescribed by Presidential Decree;
- Where she is impregnated by rape or quasi-rape;
- Where pregnancy [takes] place between relatives by blood or by marriage who are legally unable to marry;
- Where the maintenance of pregnancy severely injures or is likely to injure the health of the pregnant woman for health or medical reasons. (Mother and Child Health Act, Act No. 3824, May 10, 1986, art. 14(1).)
After examining in detail the rights of pregnant women, the state’s duty to protect fetal life, the effectiveness of the Criminal Act provisions, and other relevant matters, the Constitutional Court stated that, “in light of the importance and nature of a pregnant woman’s right to self-determination, … the State must guarantee this right by allowing the pregnant woman sufficient time to make and carry out a holistic decision” on pregnancy. (2017Hun-Ba127, p. 18.) It considered that the time for making such a decision would not extend beyond the 22nd week of pregnancy. The court called on the state to optimize the fundamental rights of pregnant women and the fetus “in accord with the principle of practical concordance, rather than abstractly comparing the two and abandoning one for the sake of the other.” (P. 20.) The court concluded that article 269, paragraph 1 of the Criminal Act “restrict[ed] a pregnant woman’s right to self-determination to an extent going beyond the minimum necessary to achieve its legislative purpose” and “violated the rule against excessive restriction and a pregnant woman’s right to self-determination” under the Constitution of the Republic of Korea (Oct. 29, 1987). (2017Hun-Ba127, p. 25.) Article 10 of the constitution guarantees citizens “human worth and dignity” and “the right to pursuit of happiness.” In addition, the court decided that, when it is unconstitutional to punish a pregnant woman who procures her own abortion, it is unconstitutional to criminally punish a doctor who performs an abortion at the request of or with the consent of a pregnant woman. (P. 26.)
However, the Constitutional Court did not invalidate the two provisions immediately. The court ordered the National Assembly to make a revision to the provisions by December 31, 2020, that would reflect its decision. The court decided that if the National Assembly failed to pass a related bill by then, articles 269 and 270 of the Criminal Act would become invalid. (Pp. 27–8.)
In October 2020, the government made public a bill to revise the Criminal Act and the Mother and Child Health Act to allow abortion until the 14th week of pregnancy, and conditionally allow abortion until the 24th week of pregnancy on the basis of social, economic and health concerns. The bill provoked heated debates, and subsequently five other bills were submitted to the National Assembly. However, because the National Assembly was unable to pass any of the bills by December 31, 2020, article 269, paragraph 1, and article 270, paragraph 1 of the Criminal Act became null and void.