Abortion Law Around the World: A Comprehensive Overview

Introduction

On 11 April 2019, the Korean Constitutional Court (“KCC”) reached a decision in which it states that the relevant clause of the Korean Criminal Act (“KCA”) setting out sanctions for abortion would constitute a violation of constitutional law (The Constitutional Court Decision 2017 HunBa 127). In the above decision, while seven out of nine Justices decided as above, two Justices voted that the sanctions for abortion should be maintained. That means, insofar as even the Justices could not reach a unanimous agreement, criminalizing the abortion issue might depend on the personal moral value, being difficult to reach a consensus even in a single society. 

Abortion entails the severe conflict between pregnant women’s constitutional right to self-determination and “fetal rights,” both of which are fundamental human rights. That is the reason why countries all over the world still have different policies and legislation on the above issue. Even in the UK, the province of Northern Ireland has maintained the strictest abortion law (Priaulx et al., 2017, pp. 279-280), whereas, the other constituent parts of the UK allow abortions, in principle, up to 24 weeks of gestation. The adjacent country, the Republic of Ireland had also maintained the most restrictive standard in abortion as well in the EU until the referendum was held on 25 May 2018 (Nicoletta, 2000; Londras, 2018, p. 651). 

This abortion law essay analyzes and compares the legal grounds of the Korean Constitutional Court's decision to decriminalize abortion, and examines how the relevant clause of the Korean Criminal Act should be amended, by analyzing and comparing with the applicable legislation and the recent shifts in the UK and the Republic of Ireland.

Analysis of KCC decision

Under clause 269 of the KCA, “a woman who procures her own miscarriage by using drugs or other means shall be punished by imprisonment for not more than one year,” and this sanction has been applied to doctors as well (the “Abortion Clause”). Abortion has been permitted under limited circumstances in accordance with the Korean Mother and Child Health Act (“KMCHA”). The KMCHA set out that abortion would be allowed in case of (i) eugenic or genetic, mental disability or (ii) any contagious disease on a fetus, (iii) being impregnated by rape or quasi-rape, (iv) pregnancy taking place between relatives by blood, (v) maintaining pregnancy may cause severely injure the health of the pregnant women.

KCC held that:

Other than the exceptions referred to in the KMCHA, the Abortion Clause completely and indiscriminately bans all abortions throughout all stages of gestation, and it forces a pregnant woman to continue her pregnancy by imposing sanctions on the women who violate the ban.

Furthermore, the majority of the Justices pointed out that the KMCHA does not consider the conflict of determining the abortion based on the social and economic determinants: for instance, concerns about difficulty in continuing jobs, studies, or other social activities; low or unstable income; lack of resources to care for another child; no desire to continue a dating relationship or enter into a marital relationship with the partner. Consequently, they concluded that the Abortion Clause impinges on a pregnant woman’s right to self-determination, and it is in violation of the constitution (KCC Decision 2017 HunBa 127).

Two Justices dissented to the above decision stating that a fetus has a constitutional right to life, and they can hardly see any essential difference between a fetus, which is able to become a human being, and a person born alive. While the minority Justices admitted that, to some extent, the Abortion Clause restricts the right to self-determination of women, such restriction does not outweigh the substantial “public interest” in protecting fetal life. They appended that the concept and range of “social and economic determinants” are somewhat vague (KCC Decision 2017 HunBa 127).

Does a fetus have a right to life?

The long-lasting debate on abortion law normally starts with an issue as to whether a fetus can enjoy a right to life, and if it does, whether it can be restricted under the circumstances where there are competing human rights. However, currently, it appears that the former issue has become almost non-controversial worldwide. According to research conducted by the Center for Reproductive Rights in which it reports that, except for two countries (North Korea and Vietnam), all the pro-choice countries have a gestational limit in abortion (The World’s Abortion Laws Map, 2014). That means, “fetal rights” is widely accepted concept across the globe, and most countries have established their legislation on abortion, based on the assumption that a fetus is at a sequential stage of human development, and thus, reaching certain stage, it would be unreasonable to discriminate a fetus against human beings (Oaks, 2012).

Then, the remaining issue of law would be whether “fetal rights” can be restricted when there is competing human rights (such as women’s right of self-determination), and if that is the case, how we can strike a balance between the two competing rights (or between rights and public interests).

“The right of self-determination” vs “fetal rights”

It is widely considered to be appropriate that individual rights give way to public goals or public interests such as morals (Abbey, 2018; KCC Decision 2017 Hunba 127). The topic of abortion laws is a contentious issue, and this argumentative essay examines the moral and legal aspects of the debate. The pro-lifers argue that fetal rights should be considered sacred and inviolable, and thus, abortion is immoral. In this sense, the courts of Northern Ireland and the Republic of Ireland had maintained that their restrictive abortion laws are lawful in terms of a legitimate aim, seeking to ‘protect the fetal rights’ (McNeilly et al., 2018).

However, above all, abortion itself shall not be considered immoral to the extent that there is a justifiable competing human right. Even in the countries categorized as “pro-life countries,” they provide several exceptions justifying abortion such as the KMCHA. In other words, immorality should be a matter of balancing human rights, and therefore, if banning abortion infringes on more significant human rights, on the contrary, it could result in immorality. Then, how can we establish the criteria on the extent to which abortion can be justified? My contention is that the legislation should try to strike a balance between allowing a pregnant woman to have sufficient time to contemplate and exercise the holistic decision in order to guarantee her right to self-determination and “fetal rights.” The diverse gestational limits depending upon each country’s own policy might be the outcome of such a balancing process (The World’s Abortion Laws Map, 2014).

It is interesting to note that, the collapse of the above fundamental basis of pro-lifers is being witnessed, and considerable shifts in abortion law occurred in the Republic of Ireland and the province of Northern Ireland last year. In terms of the Republic of Ireland, on 25 May 2018, the Irish Constitution, known as ‘the 8th Amendment,’ was repealed by 66.4% of the pro-choice voters. While several challenges to the referendum result are pending on the Irish courts, the likelihood of success in the above challenges is predicted to be negligible (Londras, 2018, p. 651). On the other hand, in June 2018, there was a noticeable decision of the Supreme Court of the UK (“UKSC”). In 2016, the Northern Ireland Court of Appeal had confirmed that criminalizing abortion would be compatible with UK Human rights commitments, dismissing the first instance court decision. However, the plaintiff, the Northern Ireland Human Rights Commission (“NIHRC”) appealed against the decision, and a majority of UKSC Justices determined that the applicable abortion law of Northern Ireland would be incompatible with Human Rights in the UK. Despite the above conclusion, based on the legal grounds that NIHRC had no legal standing in this case, the UKSC ultimately dismissed the appeal. However, it is expected that direct victims at hand may take further legal action, and further, if a domestic remedy cannot be found, the case will eventually reach the European Court of Human Rights (McNeilly et al., 2018). Eventually, it is anticipated that the abortion law in Northern Ireland would also likely be amended soon.

Even if we take pro-lifer’s arguments into consideration, we should look into whether criminalizing abortion has effectively achieved the goal for public interests or morality. A myriad of studies focused on the above regions have shown that sanctions for abortion did not function well as they intended. One of the main arguments raised by pro-lifers is that sanctions for abortion are affecting people’s behavior, in ways of increasing the rate of contraception, and eventually, being the most preventive measure for abortion. However, Oaks (2012) demonstrates that criminalizing abortion had not functioned as an effective measure to prevent undesired pregnancy in Ireland.   Looking into her research, the Republic of Ireland recorded a high level of percentages in contraception among EU countries, and moreover, thousands of Irish women and women in Northern Ireland travel abroad annually, in increasing numbers and mainly to England, to have abortion services (Oak, 2012, p. 316; Priaulx et al., 2017, p. 280). In other words, those laws have resulted in leaving women being dependent upon a clandestine industry of abortion (Priaulx et, al., 2017, p. 276). Consequently, we can conclude that criminalizing abortion has failed to fulfill its role to protect public interests or morality.

Suggestion: to what extent “fetal rights” shall be restricted in Korea?

According to the KCC decision, the Korean government should prepare an amendment of the Abortion Clause by 31 December 2020, the content of which should determine the scope of permissible abortion (KCC Decision 2017 HunBa 127). Thus, further discussion should be carried out at this juncture.

The Center for Reproductive Rights states that most countries have gestational limits in abortion within the range of eight weeks to twenty-four weeks, and it classifies abortion laws worldwide from the most to the least restrictive into four stages. It illustrates that the number of countries which allow abortion legally with “social and economic reason” is up to seventy-four at the moment, and out of seventy-four countries, fourteen countries including Great Britain are categorized as “Socioeconomic grounds” group (the 3rd restrictive group), the remainder is included in “without restriction as to reason” group (the 4th restrictive group) (The World’s Abortion Laws Map, 2014).

Firstly, in determining the permissible period of abortion, there might be various determinants that should be taken into consideration. However, this essay contends that the legislative authority should consider the following two important factors: (i) allowing a pregnant woman to have sufficient time to contemplate about the holistic decision, in order to guarantee her right to self-determination, and (ii) “the limit of viability” which means the stage of fetal maturity that ensures a reasonable chance of extrauterine survival. In this regard, in 1971, twenty-eight weeks was widely used as the criterion of viability (Han et al., 2018); however, due to the advancement of medical technology, a survival chance of a fetus living outside the womb at around twenty-two weeks of gestation has already been over 50% in 1993, and currently, it seems to be established that a fetus could survive at twenty-two weeks gestation with active neonatal treatment (Marilee et al., 1993; Han et al., 2018). Besides, KCC Decision also admitted that “pre-viability” based on the current medical technology available is at twenty-two weeks (KCC Decision 2017 Hunba 127). While the UK legislation allows a pregnant woman twenty-four weeks to have an abortion, when amending the KCA, we should make it earlier to twenty-two weeks in line with the above result from medical research. In addition, considering that twenty-two weeks would be sufficient time for pregnant women to contemplate the maintenance of pregnancy, it would be reasonable to establish the scope of permissible abortion as twenty-two weeks of pregnancy. After twenty-two weeks of gestation, abortion will be restricted subject to the KMCHA, which allows abortion in exceptional situations.

When it comes to the legitimate grounds for abortion, while the KCC decision referred to “social and economic determinants,” they are vague concepts to be defined, and thus, it is questionable whether the clear-cut standard can be established by law. Moreover, who shall determine whether the required social and economic grounds are satisfied (within the constrained period) would also be a huge problem. As such uncertainties might cause another restriction on exercising the right of self-determination, so long as within twenty-two weeks of gestation, pregnant women should be given the right to have an abortion without restriction, likewise in other European countries such as Belgium, Netherlands, France, Switzerland, and so on (The World’s Abortion Laws Map, 2014).

Conclusion

This essay has reviewed the abortion laws in the UK, the Republic of Ireland, and Korea, and concluded that the KCC decision is, by and large, reasonable, the “fetal rights” can be restricted if banning abortion infringes on more crucial human rights, on the contrary, resulting in immorality. Furthermore, this essay has shown that criminalizing abortion has failed to fulfill its role to protect public interests or morality. Based on the above, this essay suggested that draft legislation in Korea in terms of the scope of permissible abortion should allow twenty-two weeks of pregnancy in consideration of “pre-vitality” based on the current medical technology, and so long as within twenty-two weeks of gestation, the right of pregnant women should be guaranteed without restriction.

Bibliography

1. Abbey, B. (2018). Is the whole point of human rights their universal character? A, B & C v Ireland and SAS v France, LSE Law Review. 3, 45-56.
2. Han, L., Rodriguez, M., & Caughey, A. (2018). “Blurred lines: disentangling the concept of fetal viability from abortion law”. Women’s Health Issues. 28(4), 287-288.
3. Londras, L. (2018). Thirty-sixth Amendment to the Irish Constitution in Rackley, E., & Auchmuty R. (Eds.), Women’s legal landmarks: Celebrating the history of women and law in the UK and Ireland (pp. 651-658). Oxford: Hart.
4. Marilee, A., Pamela K., & Amy D. (1993). 'The limit of viability--neonatal outcome of infants born at 22 to 25 weeks' gestation'. The New England Journal of Medicine. 329(22), 1597–1601.
5. McNeilly, K., Bloomer, F., & Pierson, C. (2018, June 9). The Supreme Court’s decision on Northern Ireland’s abortion law – what now? [Blog post]. Retrieved from http://blogs.lse.ac.uk/politicsandpolicy/supreme-court-on-ni-abortion-law
6. Nicoletta, c. (2000). Abortion in depth: Abortion legislation in Europe. Choices-Sexual Health and Family Planning in Europe, 28(2), 2.
7. Oaks, L. (2012). Abortion is part of the Irish experience, it is part of what we are: The transformation of public discourses on Irish abortion policy, Women’s Studies international forum, 25(3), 315-333.
8. Priaulx, N., & Jones, N. (2017). Abortion Act 1967 in Rackley, E., & Auchmuty R. (Eds.), Women’s legal landmarks: Celebrating the history of women and law in the UK and Ireland (pp. 275-281). Oxford: Hart.
9. The Center for Reproductive Rights. (2014). The world’s abortion laws map. Retrieved from http://worldabortionlaws.com/map