낙태에 관한 규정의 현황과 모자보건법의 합리적 개정방안

Abstract

Current regulations on abortion are mainly included in the Criminal Code and the Mother and Child Health Act. The Criminal Code prohibits abortion but the Mother and Child Health Act allows physician an artificial abortion with the consent of a pregnant woman and her spouse within 24 weeks if there is medical, eugenic or ethical condition. However, it has flown over 60 years after enactment of the Criminal Code and it has passed more than 40 years after enactment of the Mother and Child Health Act without any revision. Now, regulations on abortion have already become dead letters, and medical science and social phenomenon has been completely changed in comparison with the time of legislation of regulations on abortion. Therefore, regulations on abortion need to be revised according to current circumstances even if the present abortion law system, namely the Criminal Code and the Mother and Child Health Act, is maintained. Although the Criminal Code prohibits any kind of abortion, the application of too strict Criminal Code on the crime of abortion may rather promote an illegal abortion. It is necessary to introduce term model, improve condition model and establish procedures in order to ensure the effectiveness of regulations on abortion. First, it is necessary to introduce term model in case of abortion within 12 weeks of pregnancy considering the growth stage of the fetus. Next, it is necessary to improve condition model in case of abortion after 12 weeks of pregnancy. The current Mother and Child Health Act allows abortion only within 24 weeks when there are medical indications. But abortion should be allowed any time when the risk of continuation of pregnancy is greater than the risk of abortion. The criteria for the eugenic indications must be based on not a pregnant woman or her spouse but fetus. Because it is possible to determine directly whether fetus has abnormality or not, with development of prenatal diagnostic techniques. The ethical indications are limited to rape and quasi-rape, but these should be expanded to all sexual offences under the Criminal Code. Social and economic indications are the most frequent cause of abortion. The way for abortion must be opened when continuation of pregnancy is likely to endanger social or economic status of a pregnant woman and her family. Finally, the provisions of procedure for abortion should be established. Because pre-control through procedures is more efficient to protect the life of fetus and prevent abortion. Verification of procedures should be primarily done mainly through consultation system. There is urgent need for introduction of consultation system which is the most effective to protect the life of fetus and prevent abortion.