The Crime of “Abortion” (and Other Related Crimes)

Jisun is faced with an unplanned pregnancy. Her longtime boyfriend Jinho is the father. Unsure of how Jinho will respond, she informs him via text message. Jinho’s heart sinks. That evening, the two meet at a cafe, and the following conversation takes place:

Jinho: “I’m not ready for a child at this point in my career.”

Jisun: “Don’t worry. I will do my utmost not to place undue burden on you.”

Jinho: “I have absolutely no intention of marrying you regardless of what you choose to do.”

In the following days, Jinho repeatedly “advises” Jisun to have an abortion. He even provides her with a list of abortion clinics. After much deliberation, Jisun decides to have an abortion, fearing economic hardship in bringing up the baby. She checks into an abortion clinic, and the doctor performs the abortion. The procedure is over in less than ten minutes. What crime, if any, have Jisun, the doctor, and Jinho committed? Assume this is taking place in Korea.

Elements of “Abortion”

According to Article 269(1) of the Criminal Act (형법), the punishment for “Abortion” (낙태) is imprisonment for not more than one year or a (criminal) fine not exceeding two million won. An attempt to commit this crime is not punishable. Accidental miscarriages are likewise not punishable. In order to qualify as “Abortion”:

1) A woman has to induce her own miscarriage

2) Through the use of drugs or other means

3) With the intent to commit “Abortion.”

The term “miscarriage” refers to the premature termination of pregnancy by the expulsion from the uterus of a fetus or embryo. The miscarriage could be “induced” by the mother herself or by another person upon request. Whether the premature termination of pregnancy actually results in the death of the fetus/embryo is irrelevant (Supreme Court Decision of April 15, 2005, 2003Do2780).

For the purposes of this crime, the “induced miscarriage” must take place during pregnancy, specifically between the “implantation of the embryo” and the “onset of labor pains.” The intentional killing of a baby perpetrated after the “onset of labor pains” will either constitute the crime of “Infanticide” (영아살해) or “Murder” (살인). The former if perpetrated by a parent/grandparent; the latter if perpetrated by anyone else. In (Korean) criminal law, a fetus becomes a person with the “onset of labor pains” (Supreme Court Decision of October 12, 1982, 81Do2621).

The Constitutional Court of Korea recently reaffirmed the constitutionality of this crime. Both Articles 269(1) and 270(1) were found constitutional. The Court concluded that Article 269(1) did not infringe on a pregnant woman’s right of self-determination. Article 270(1) punishes physicians and other health care professionals who perform illegal abortions.

Meanwhile, a person who “instigates” a pregnant woman into committing this crime will also face punishment. “Instigation” is the act of deliberately persuading another person – who otherwise would not have committed a crime – into doing so. In such case, the crime is called “Instigating Abortion” (낙태교사). A boyfriend who “instigates” his pregnant girlfriend into having an abortion will face the same punishment as the girlfriend.

Korea’s Mother and Child Health Act (모자보건법)

Not all abortions are criminal. According to the Mother and Child Health Act and its enforcement decree, an abortion may be carried out only if:

– The continuation of pregnancy seriously endangers the mother’s health, or

– Either spouse suffers from certain eugenic, genetic or contagious diseases, or

– The pregnancy was a result of a rape-related crime or incest.

In addition, all abortions are required to be performed by a physician, with the consent of both spouses, and within 24 weeks of pregnancy. Meeting these requirements negates criminality.

Jisun, the Doctor, and Jinho’s Respective Crimes

The above fact pattern is adapted from a recent Supreme Court of Korea case (Supreme Court Decision of September 12, 2013, 2012Do2744). The key question was whether the boyfriend’s actions amounted to “Instigating Abortion.” In the case, the defendant (i.e., the boyfriend) was found guilty and fined two million won. The Court ruled that the defendant’s actions, as a whole, constituted “Instigating Abortion.” So, to summarize:

1) Jisun has committed the crime of “Abortion” under Article 269(1) of the Criminal Act. Her motive for having an abortion did not fall within any of the circumstances set forth in the law. The law does not recognize “economic hardship” as a legitimate reason for having an abortion.

2) The doctor who performed the procedure has committed the crime of “Abortion by Doctor” (의사등의 낙태) under Article 270(1) of the Criminal Act.

3) Jinho has committed the crime of “Instigating Abortion” under Articles 269(1) and 31 of the Criminal Act.

Having said that, very few people are actually indicted for these crimes in Korea. (Normally, fewer than ten per year.) If indicted and convicted, Jisun and Jinho will each face a (criminal) fine. The doctor could face more severe punishment.