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KMID : 0986720100180020099
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Korean Journal of Medicine and Law
2010 Volume.18 No. 2 p.99 ~ p.119
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A Study on the Prohibition of Ascertaining the Gender of Fetus in the Medical Service Act
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Lee Baek-Hyu
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Abstract
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On July 31, 2008, the Constitutional Court in Korea delineated a decision that the article-the prohibition of ascertaining the gender of fetus in the Medical Service Act - is incompatible with the Constitution. Since then, though the Medical Service Act has been revised, it is still being restricted for doctors to have a freedom in consulting their patients, and for pregnant women to have the right to be informed of the gender of fetus. Thus, this study examines the current rule which prohibits from ascertaining or informing the gender of fetus, and punishes those who violate this rule. And this study also suggest reconsidering the current rule fundamentally, and revising the Medical Service Act additionally.
In general, the legitimacy of the legislative purpose, "protection of fetus" and ‘inducement of gender balance" are accepted, however, this can not be admitted with respect to its enforcement. First of all, there are little cases where ascertaining the gender of fetus causes abortion. Since genetic disease can be differed from the gender of fetus, for the purpose of medical treatment, or prevention, it is also needed to identify the gender of fetus. Furthermore, regarding the gender ratio, statistics show that the gender balance in the Korean society has already been reached naturally. Although the gender imbalance is still appeared among the third or later children, however, its proportion is still below ten percent of the total birth rate and it is gradually reduced. There is no case that the pregnant woman aborted, just because the gender of fetus was not what they were expected. it is also noticeable that the awareness of the life of fetus, and the preference of male offspring in Korean society have changed compare to the day when this article was established.
Meanwhile, the act of ascertaining the gender of fetus belongs to the pre-act to the abortion. This should be considered with a cautious attitude relatively, but it isn"t. It is totally unnecessary to have a separate rule to preserve the life of fetus Because the abortion itself is being punished in the criminal law. In other words, it is to deny the effectiveness of the provisions of abortion in the criminal law.
For these reasions, this provision should be abolished. It is very unreasonable to use the punishment in this act. It is the matter of ethics.
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KEYWORD
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fetus, gender, ascertaining the gender of fetus, gender ratio, abortion, son preference
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