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which the Constitutional Court ruled cannot be regarded as human beings

The Constitutional Court of Korea has issued a ruling stating that “pre-embryos,” which have only been fertilized for up to two weeks, cannot be regarded as human beings.

On May 27, nine Constitutional Court justices ruled unanimously that Clauses 1 and 2 of Article 16 of the “Bioethics and Biosafety Law,” which permits the use of fertilized embryos in research on infertility treatment and medical disorders and mandates the disposal of embryos five years after initial fertilization, “do not violate the right to life of human beings” and are therefore constitutional.

A married couple surnamed Nam obtained three artificially inseminated embryos created from their own genetic material at a hospital in Busan in December 2004. One of the three embryos was implanted in Ms. Nam, while the remaining two were destined to be used for further implantations or for biotechnological research if they did not result in pregnancy.

The following year, eleven individuals including the Nams, ethicists, philosophers and doctors, launched a constitutional appeal, saying, “Bioethical laws that define artificially inseminated embryos as non-human bundles of cells treats them as tools for research and mandates their disposal at the end of a preservation period, and is a violation of the fundamental right to life.” The two remaining embryos, which were being stored in a freezer at the time, were included in the group of appellants as “qualified human beings.”

However, the Constitutional Court stated, “Although we acknowledge the basic rights of fetuses before birth, pre-embryos, which have been fertilized but within which the ‘primitive streak’ has not yet formed, cannot be regarded as humans.” The primitive streak appears on embryos that have been fertilized for around 14 days and later forms the spine.

The Constitutional Court stated, “So long as a pre-embryo has not yet been implanted in the mother’s body and its primitive streak has not yet appeared, it is difficult to determine the individual continuity between a human and the embryo.”

This constituted a rejection of the appellants’ assertion that an embryo, a fetus and a newborn baby are one and the same organism on a single path of continuity, and that dividing a human life into distinct stages was arbitrary.

After partially acknowledging that the Nams, as the genetic parents of the embryos, were qualified to make the appeal, the Constitutional Court said, “It is inevitable that large numbers of leftover embryos will be produced because several are created at any one time in order to increase the rate of a successful pregnancy.” In spite of this acknowledgement, however, it ruled that mandatory disposal of embryos after five years was lawful, saying, “An increase in the number of frozen embryos can lead to problems of high cost to society and negligent management.”

Some religious groups expressed regret at the Constitutional Court’s decision.

“Every human being goes through the embryonic stage,” said Father Park Jung-woo, director of the Catholic Archdiocese of Seoul’s Committee for Life. “Catholics regret this decision by the Constitutional Court because we are opposed both to the artificial creation of embryos and to their use, once created, as tools for manufacture, as they are entitled to dignity as living beings.”

Experts in the medical sector, however, expressed the opinion that the Constitutional Court’s decision was not a major diversion from existing bioethical laws and was therefore not highly problematic.

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