Korea’s ban on fetal sex disclosure prior to 32 weeks ruled unconstitutional

Posted on : 2024-02-29 17:06 KST Modified on : 2024-02-29 17:07 KST
The Constitutional Court’s majority opinion cited a decline in the preference for sons and sex-selective abortion
(Getty Images Bank)
(Getty Images Bank)

A Korean law prohibiting the disclosure of fetal sex that has been on the books for the past 37 years has been ruled unconstitutional by the country’s Constitutional Court.
The court claimed that sex-selective abortion, based on the preference of sons over daughters, is no longer a problematic issue, and that the law has become ineffective since it has become common practice for doctors to reveal the sex of the unborn child. 
On Wednesday, the Constitutional Court ruled that Article 20(2) of the Medical Service Act, which bans the disclosure of the gender of a fetus before 32 weeks, is unconstitutional in a 6-3 decision.
The development of medical technology that allows for the determination of a fetus’s sex resulted in sex-selective abortions becoming so rampant in the country that a clause banning the determination of fetal sex was added to the law in 1987.
When the law was first implemented, it stipulated that the fetus’s gender was to be revealed at no point during the pregnancy, but the Constitutional Court decided in 2008 that the standards went against the principles of proportionality stated in the Constitution. After, the law was amended to ban the disclosure of the gender of a fetus before 32 weeks of pregnancy.
Six justices on the court deemed the law unconstitutional, stating, “There is no longer a strong correlation between the gender of fetuses and abortions.”
In their majority opinion, the justices wrote, “South Korea has seen the growth of women in the socioeconomic field, and gender equality is steadily flourishing, leading to the decline of the preference for sons. A Statistics Korea report stated that sex ratios by birth are now within the normal range of natural sex ratios. The law restricts the fundamental right of parents to know the gender of their unborn child before the 32nd week of pregnancy, with only the very exceptional circumstance of sex-selective abortion.”
When the provision was first introduced 30 years ago, many girls were, based on their gender, robbed of their chances at life due to the widespread preference for sons.
The natural sex ratio is at around 104-106 boys to every 100 girls, but when the ratio reached its worst in the 1990s, 116.5 boys were born for every 100 girls.
At the time, the sex ratio for firstborns was 108.5 while the sex ratio for second-born and third-born offspring were 117.1 and 193.7, respectively, signaling a gross imbalance.
Now, the sex ratio for third-born children has reached a normal range, which many analyze as a sign that the preference for sons has become something of the past.
The Constitutional Court cited more practical reasons for its decision, stating that it has become common practice in the medical field for doctors to inform those who are pregnant of a fetus’s gender before 32 weeks.
“While many have been told by their doctor of the fetus’ gender before 32 weeks, there have been no cases of prosecution, referral, or prosecution for violation of this provision in 10 years. This shows that this provision has lost its normative regulation and has become a dead letter,” the court judged. 

Justices Lee Jong-seok, Lee Eun-ae, and Kim Hyung-du in their minority opinion argued for amending the clause so that a gender reveal may occur in earlier stages of a pregnancy.
“We cannot confirm that the preference for sons has completely disappeared, and the nullification of the abortion criminalization clause makes us believe that the removal of all restrictions on the disclosure of fetal sex may lead people, who have certain preferences when it comes to gender while a planning for pregnancies, to choose abortions,” they wrote. 
“While keeping in mind the decision-making period mentioned in the Constitutional Court’s decision on abortion, the law should be amended to minimize the infringement of the fetal right to life by allowing the disclosure of the gender earlier than the current status quo,” they added.

By Lee Ji-hye, staff reporter

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