낙태죄 헌법불합치 결정을 딛고, 어디로 가야 하는가? －성과 재생산 권리에 기반한 임신중단 권리 보장 입법의 기초－

After the Constitutional Court of Korea ruled the provision of criminal abortion unconstitutional, the expiration of the legislative deadline opened the door to an unfamiliar world in which there is no provision for punishment of abortion in Korea. With the lack of social consensus on the direction of legal improvement regarding abortion after the Constitutional Court’s decision on unconstitutionality, we have no choice but to return to the decision that has led us to this point as a starting line to gauge the direction of reproduction-related norms in the future. The Constitutional Court’s decision elaborates women’s right to self-determination when abortion is at stake, which lays the foundation of the right to abortion as a basic right in relation to sexual and reproductive health and rights(SRHR). The strength of the concept of SRHR lies in the capability to interrelate the demands for bodily integrity and self-determination derived from the physical relevance of the parties involved to the social demands against socio-economic barriers that hinder free choice. The Constitutional Court’s decision recognizes fetal right to life while taking a gradual approach at the same time, seeing that the level of legal protection may vary depending on the developmental stage of life. However, this position has a problem with logical consistency and is disconnected from reality as it fails to fully reflect the physical and social interdependence of women and fetuses. There is an exaggeration in acknowledging the fetus as a subject of the right to life, and there is a high risk of causing the relativity of the right to life. In order to effectively protect the life including the fetus, it is necessary to construct a logic that faithfully reflects the interrelated and dependent relationship between women and fetuses from the very stage of determining the starting point of the right to life. The potential for life lies not only in the DNA of the fetus but also in the maternal commitment to nurturing during pregnancy. Considering this, the starting point of the entire right to life cannot be earlier than the moment of birth, when the fetus has its own physical domain and transition occurs from utter dependence only on the pregnant woman to dependence shared by multiple individuals and the society. Based on the right to abortion encompassed by SRHR, at least punishing pregnant women themselves for abortion does not align with the fundamental principles of the right to self-determination, given the spirit of the Constitutional Court’s decision to respect women’s comprehensive right to self-determination. It is difficult to be constitutionally justified, regardless of the number of weeks of pregnancy.