낙태에 관한 헌법적 논의와 입법론

The debate over abortion continues in Korea. In 2019, the Constitutional Court ruled that the abortion criminalization clauses were nonconforming to the Constitution. However, the National Assembly(NA) has not yet completed its legislative process on abortion. As a result, the relevant Criminal Act(CA) provisions have lost their effectiveness, effectively rendering the abortion criminalization clauses obsolete, and resulting in the anomy regarding abortion. The NA must immediately revise not only the Mother and Child Health Act(MCHA) but also the CA. Amending the MCHA first to remove the abortion permissible provisions and to allow for medication abortion, while leaving the CA untouched, would result in full acceptance of abortion. It is a dangerous simplification to balance the fetus's right to life and the woman's right to self-determination on the same level in all abortion-related situations. While this framing may be effective within the feminist movement, it is extremely dangerous in legislative process. While a woman's right to self-determination is often cited as a justification for abortion, this requires closer examination. A woman's right to life and health, which conflict with the fetus's right to life, must be respected. In principle, when these two rights conflict, a woman's right to life and health must take priority. On the other hand, if the legal system does not allow for pregnancy, a woman's right to terminate a pregnancy can be recognized as an exception. However, even if abortion is permitted, the MCHA must stipulate procedures and methods that maximize the protection of a woman's life and health. In contrast, the right to terminate a pregnancy based on social or economic reasons must be limited, as the fetus's right to life takes priority. The early pregnancy period during which a woman's right to self-determination is guaranteed should be determined to be the time from the sixth week of pregnancy, when the fetus's heartbeat begins, to the point at which the pregnancy is recognized, plus a sufficient period for consultation with a medical institution. Therefore, a woman's right to terminate a pregnancy should be exercised within the first ten weeks of pregnancy, but certain consultation procedures must be followed to ensure that this right is exercised carefully. Such consultation procedures should be stipulated separately in the MCHA.