낙태에 대한형법정책

Abstract

This essay aims to illuminate controversies over legal control of abortion, particularly from the cognitive interests of criminal policy. Frankly speaking, the right to abortion has been implicitly overlooked despite of the fact that abortion is officially prohibited by Criminal Code, for the Mother and Child Health Law generally exempts abortion from its criminal liability. Maybe that is why abortion has never actually been a burning issue in Korean civil society, in comparison to the ever-so-controversial debate of pro-life vs. pro-choice that frequently takes place in every election campaign of the West. Recently, discourse of the reproductive health rights, which is more or less oriented toward pro-choice, seems to attract the attention of both the civil society and the academia. However it appears to be rather biased and somehow even unproductive discourse, since the current practice of Mother and Child Health Law already supports the position of pro-choice. Nevertheless such ideas have indeed taken concrete shape last November, in the proposal of amendment to Article 14 of Mother and Child Health Law. Probably the most crucial change that occurred to the proposal of amendment would be addition of social and economic reasons. That is, to propose official decriminalization of abortion if pregnant woman asks to do so according to social and economical reasons within 24 weeks of pregnancy. These include social reasons such as adolescence pregnancy or non-marriage pregnancy, as well as economic reasons like family plans. To jump to the conclusion, I believe that only social reasons -apart from economical reasons- are to be approved of decriminalization. As far as I am concerned, it seems inappropriate to acknowledge the discourse of abortion as dichotomy of punished/unpunished. The aim of criminal policy towards abortion does not lie upon the punishing of poor young pregnant woman. Criminalization of abortion intends to implant the awareness of prohibition. However, considering the prolonged survival rate of embryo due to medical advancement, I reckon that the 24 weeks limitation should better be shortened. As a matter of fact, vast majority of countries in the West regulate the limitation from 10 to 14 weeks in average. The proposal of amendment also suggests enforcement of a counseling system: if a pregnant woman wants abortion, she is required to go through counselling twice before ultimately deciding to have operation. Despite numerous virtues of this newly invented system, problems none-the-less remain because of its naiveness. Since it lacks enforceablity, which would inevitably be crucial element of the soundness of criminal law, counseling system is very likely to degenerate into merely a paper tiger, only raising the social and economic cost of abortion after all. Therefore we ought to come up with more concrete and substantial device to restrain reckless increment of abortion. One possible idea would be to dualize obstetricians- between the doctor who operates surgery and the doctor who inspects the legitimacy of abortion. Because of continuous decline of birth rate, it has become a sort of open secret, that illegitimate abortion acts as one of major profit-making source for many obstetricians. In such cases, scrupulous observation from government and civil society is very much in need. What I would like to emphasize ultimately, is the confirmation of concrete and fundamental principle of prohibition. Moreover, another point that I had urged to emphasize was that such principle of prohibition derives not from the empirical, but more-or-less from the normative. Although sociologists, feminists, counselors or doctors may as well provide useful empirical data or theoretical backgrounds to the controversies over legal control of abortion, they cannot and should not directly affect the specific details of legislation. Criminal policy is oriented toward educating prudent responsibility for the consequences of indiscreet desire, by clarifying the principle of prohibition.