On January 1, 2021, abortion was effectively decriminalized due to an order by the South Korean Constitutional Court in 2019. They had ruled that criminalization of abortion was unconstitutional, and the laws had to be revised by the end of 2020. Now, abortion is legal up to week 14, and up to week 24 if there are serious health and/or socio-economic reasons.
Abortion was largely illegal from 1953 to 2021, and Korean women's access to abortion services was very limited from a legal level, as it was only allowed in certain circumstances. Nevertheless, illegal abortions were widespread for a long time. Yoonju and Minji’s stories are examples of this. There are many reasons for the high number of abortion rates, and lack of sex education and effective contraceptive methods are important factors. Another aspect is the government’s varying population policies. Crackdown on illegal abortions have followed the birth rate. If the birth rate is high, abortion is more encouraged.
Abortion should be focused primarily on the health and interests of women, but in South Korea it has been focused on how government attitudes towards abortion have fluctuated over 70 years. During the population surges of the 60s and 70s, the government actively encouraged its citizens to have illegal abortions so they might stave off the dangers of overpopulation. This policy was in line with the interests of women, who were obligated to give birth to and raise many children. At that time, there was neither objections nor debate concerning the birth control policy of the government. From the 1960s to the 1990s, posters for the birth control campaign continued to appear. Starting with birth control in the 1960s under the 1961 slogan "Bearing Children at Random Makes It Hard to Escape Poverty," South Korea passed through the two-child period of the 1970s and the "Two is enough," or the "two is too many" era in the 80s, to a time when children again pleaded, "Mom, I want a younger brother or sister" in the 2000s. The birthrate already dropped, but the notion that "two is too many" – the 1980s' family planning slogan – was deeply embedded. In 1987, the government made it illegal for doctors to reveal the sex of an unborn child because families continually favored sons and aborted girl fetuses. This was eventually overturned in 2008 on the grounds of violating parents' rights to know and doctors' freedom to practice.
The problem is that the purpose of the criminal law that previously outlawed abortion and the reality of widespread abortion were too far apart. Korean women have been accessing abortion services between these contradictions for nearly 70 years and the government have enforced the laws following the curve of the birth rate, meaning the laws are more enforced when the birth rate is low. Moreover, spousal consent has been required, with only women being punished if it becomes known that she has had an abortion. There have been cases where men have used this as a way to get revenge on a previous partner.
1953 Criminal Code
In the 1950s, Korea was faced with inadequate circumstances due to the division of the nation and the aftermath of the Korean War, and many women were forced to have abortions due to socio-economic difficulties. However, the Korean government and the political community included abortion in the Criminal Law of Korea. The idea that population growth is necessary to strengthen national power was widespread among policy makers of the Park Jeong-hee government.
The introduction of the Criminal Code in 1953 made abortion illegal. Articles 269 and 270 outlaw self-induced abortions and abortions performed by licensed professionals, regardless of the consent of the woman. The penalties include imprisonment or large fines, defined by the situation and potential lethal outcome, with the penalty stricter for medical practitioners than the woman.
One has to keep in mind that this Criminal Code came to a year after the Korean War had ended, and many Korean men had died in the war. The introduction of Articles 269 and 270 can be seen as legislative steps to increase the population.
1973 Mother and Child Health Act
In the 1960s, population control was deemed necessary for national economic development, and family planning programs were included in the first five-year economic development plan. In the early stage of the family planning program, population control was attempted by promoting contraception, but this method was found to be very limited. Therefore, population control policy was followed by a way of invalidating criminal abortion. In this regard, the Maternal and Child Health Act of 1973 allowed partial legalization of abortion, which is interpreted as confirming the national policy of population control and the tendency to legalize abortion at an international level. Nevertheless, it was not easy for women or doctors to perform artificial abortion surgery, as long as the Criminal Law specifies abortion.
The 1973 the Mother and Child Health Act came into effect, regulating the strict abortion practice with allowing abortion in certain circumstances within 24 weeks of pregnancy.
According to Article 14 of the Act, it was possible to access to abortion service in 5 cases:
- There is great risk that the fetus will inherit eugenic or genetic mental or physical disorders from the woman and/or her spouse,
- The woman or her spouse has an infectious disease,
- The pregnancy is due to rape or quasi-rape,
- The pregnancy is the result of intercourse between blood relatives,
- The pregnancy is a serious threat to the pregnant woman’s health
The Act stipulates that a woman can have an abortion with a spouse's consent within 24 weeks from the date of conception only for the reasons mentioned above. Social and economic reasons were excluded from the reasons for allowing abortion. Since then, until the 2000s, plans to add socio-economic reasons for allowing abortion and to legalize abortions for unmarried women were continuously discussed, but the Criminal Law and Maternal and Child Health Law were never revised. Although legally permitted reasons for abortion in Korea are limited, procedures of clandestine termination have been performed, and punishment for this is very rare.
In 1987 (revised in 1994) plans were devised to amend the Criminal Law to preserve the criminal abortion and only accuse and charge women who have abortions. Allowing abortions under these terms would maintain the existing patriarchy in the larger framework, while attaining the effect of allowing abortion. Confronted with strong resistance from the religious communities, however, only a few terms were modified. In the 2000s, population growth policies were emphasized and abortions should be prevented due to the low birth rate. Even the progressive governments retained the criminal abortion and followed the population policy in response to low fertility. This course of history eventually met with the conservative approach to artificial termination of pregnancy in the Lee Myung-bak administration and resulted in the 2009 incident of GYNOB (Pro-life Society of Doctors), declaring suspension of illegal abortions and disclosing doctors who have carried out abortions. In the aftermath, the Constitutional Court ruled that the criminal abortion was constitutional in 2012. Nevertheless, the incident became a springboard for the growth of feminism in South Korean society. The abortion debate which was sparked again in the Park Geun-hye government in 2016, resulted in an unconstitutionality suit at the Constitutional Court once again. In April 2019, however, the case was concluded with a “constitutional discordance adjudication” in the context of regime change and growth of feminism.
The issue of abortion has entered a new phase with the legislation. Articles 269 and 270 of the Criminal Code are null and void. However, South Korean women are still not guaranteed safe abortions on a national basis; it takes time to ensure this access and laws securing this have not been put in place. Moreover, societal taboos may remain, even though the legislative barrier has been removed. There is still a struggle to be fought, and there is still a conservative fraction that has not given up to hope to restrict abortion access in South Korea.
Written by:Tilla Solli for The Women's Museum of Norway
Information collected by the Gender Museum in South Korea
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