落胎의 自由와 胎兒의 生命權

Abstract

Our Constitution provides neither a woman’s right to an abortion nor a fetal right of life. That is the same to U.S. and Germany. The U.S. Supreme Court ruled that a fetus is not a person in the Amendment 14 and a woman’s privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy, and a pregnant woman has a right to an abortion. But the Court also ruled that a state has a power to regulate on a right to an abortion without undue burden or substantial obstacle. Furthermore, the Court also ruled that when a fetus has viability, a pregnant woman can abort a fetus if only she is in the serious danger of her life or health. On the contrary, the The Germany Constitutional Court ruled that a state is under an obligation to protect a fetus as a human life after nidation according to article 1 (ⅰ), 2 (ⅱ) of the Constitution, and a pregnant woman does not have a right to an abortion. Only if she has a proper cause－for instance, in the case of that she is in the serious danger of her life or health－, she can abort a fetus after passing through a consultation with a doctor. Our Constitutional Court does not have a chance to judge whether abortion clauses(article 269 (ⅰ) of the Criminal Code which provides a ban on an abortion, and article 14 of the Mother and Child Health Act which provides exceptional permitting cause of an abortion) are unconstitutional or not. Whereas there is no case whether a right to an abortion is approved from a right to Self-Autonomy, Our Constitutional Court expressly ruled that a fetus has a right of life. According to the above ruling, we can conjecture that a fetal right of life outweighs a woman’s a right to an abortion. But a fetal life is not equal to a person’s life. A fetus should be estimated as a person only after having independent viability. Thus we ought to acknowledge that a woman’s a right to an abortion outweighs a fetal right of life. And a concurring clause of the Mother and Child Health Act can not survive the constitutional court’s review on the reason of that the concurring clause restricts excessively a woman’s right to Self-Autonomy.