The South Korea Central District Court on Wednesday jailed two doctors for performing an abortion on a woman who was in her 36th week of pregnancy.
The court held that the hospital director and the operating surgeon are both guilty of murder, sentencing them to prison terms of six and four years, respectively. According to the prosecutor, the operating surgeon performed a cesarean section to deliver the newborn and placed the offspring in a freezer. The court also found that the hospital director had falsified the medical records to indicate a stillbirth.
The court also held that the 26-year-old mother was guilty of attempted murder, but suspended her three-year imprisonment for five years, considering that she faced significant difficulty in managing pregnancy, childbirth, and childcare. The court reiterated that the right to life is a constitutional right of all individuals, including a newborn. Nevertheless, the court considered that there has been a legislative vacuum that renders access to abortion difficult for pregnant women in South Korea, thereby suspending the imprisonment sentence of the mother.
In April 2019, the Constitutional Court of Korea ruled by a 7-2 majority that the crime of abortion is unconstitutional because it infringes upon a woman’s right to self-determination. The ruling effectively decriminalized abortion, effective starting January 1, 2021. However, the country’s legislature has not enacted any regulatory framework relating to abortion, leaving it uncovered by national health insurance.
Responding to the ruling, Amnesty International’s deputy regional director Sarah Brooks criticized the legislature’s inaction:
Abortion is essential healthcare and a human right under international human rights law and standards – it is not a crime. Today’s ruling highlights the impossible position pregnant people and medical providers are placed in due to the ongoing legal vacuum surrounding abortion in South Korea.
Article 12 of the International Covenant on Economic, Social and Cultural Rights requires all state parties to ensure their citizens’ right to the enjoyment of the highest attainable standard of physical health, which includes the right to access to safe abortion.
Instead of regulating abortion, the National Assembly of South Korea enacted the Special Act on Crisis Pregnancy and Protected Childbirth Support and Child Protection in 2024. The law allows a pregnant woman to apply for protected childbirth, which anonymizes the pregnant woman and transfers a child to the head of municipal governments, who will then act as the guardian of the minor. Human Rights Watch has previously urged South Korea to reconsider the law, arguing that it would increase stigma around unwanted pregnancies. Notably, Article 7 of the UN Convention on the Rights of the Child protects a child’s right to know their parents.
