낙태에 대한 헌법적 논의

Abstract

This study examines the constitutional issue of abortion, mainly in terms of human life and the right to life, the dignity of human beings, the right of self-determination and so on. It attempts to discuss constitutional matters on abortion from a rather broad perspective beyond the boundaries of constitutional studies. Abortion presupposes the relation between the two, a pregnant woman and a fetus: the former has a fetus in her body and the latter is in a subordinate status whose security is ensured only by the pregnant's one-way care. Moreover, the two can be entitled the subjects of the right to life and the self-determination on abortion, both of which are drafted up on the constitutional right to pursue happiness. There is no doubt that a fetus has the right to life, regardless of the debate on when human life, or personhood, begins. In contrast, a pregnant woman's decision on abortion seems to be unapproved because the decision will infringe a fetus's right to life. Some constitutional issues can be considered on the condition that a mother's right to abortion is approved according to the right to pursue happiness under the Constitution. First, the conflict of the self-determination and the right to life raises the problems with the contrasting basic rights. Second, if a mother's self-determination is approved based on the Constitution, the criminal law that bans all abortions regardless of pregnancy periods, the regulation on criminal autonomic abortion under Article 269, and the regulation on work-related consented abortion under Article 270 can conversely violate the Constitution, apart from exceptive clauses under the mother and child health law. Third, the regulations on abortion under the criminal law limit the right to self-determination on abortion under the Constitution, which could be regarded as a restriction on the basic rights stipulated in Article 37, Section 2 of the Constitution. But the debate presupposes an approval of a mother's right to self-determination. However, such approval is not easily granted because a mother's right to self-determination will infringe a fetus's right to life. In light of law logic, it makes sense that a fetus's right to life is guaranteed by Article 10 of the Constitution of Korea based on the principle of respect for life according to the dignity and worth of human beings, and that a fetus's right to life is relatively above any rights to abortion. In spite of such severe punishment, Korea witnesses a large number of abortions performed in reality and it is at a higher level than other countries where in comparison, abortion is freely available within a certain period. Even in the situation that there is a big gap between the law and the reality, it is necessary to discuss whether claims about absolute superiority of the right to life are valid or not. In the early period of pregnancy when a fetus is in the process of becoming a complete human being, there might be much room for compromise between a fetus's right and the agony of a woman seeking to have an abortion. Therefore, on the basis of various theories of the relation of a pregnant woman and a fetus, making a compromise between the two different rights by adopting a period restriction measure in case of the early pregnancy, along with the current adaptability restriction measure which is very limited, could be a key to narrowing down the current gap between the law and the reality regarding abortion. If the transitional step produces actual results, it would be possible to return to the current state of absolute superiority of the right to life.