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KMID : 1172020110120010053
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Journal of Korean Bioethics Association
2011 Volume.12 No. 1 p.53 ~ p.70
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The Criminal Protection of Human Gamete, Embryo and Fetus
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Hwang Man-Seong
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Abstract
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After a year-long discussion, on October 14, 2003, the government bill, “Bioethics and Biosafety Act,” was referred to the Korean National Assembly, the assembly that ultimately passed the Bioethics Act in December 2003. The Act placed a strict ban on the manipulation of human embryos for research purposes. An act of implanting a cloned embryo through SCNT technology into a woman’s uterus, an act of maintaining the implantation of a cloned embryo, or an act of leading to the birth of a cloned baby is prohibited. A violator or a would-be violator shall be imprisoned up to ten years. Participating in, inducing one into, or brokering any act conducted for the purpose of human cloning is also prohibited and penalized.
Article 12 provides a ban on interspecies implantation. Additionally, the following acts are prohibited: 1) fertilizing human eggs with animal sperms or vice versa; 2) transplanting a nucleus taken from an animal somatic cell into a human anucleated egg; 3) fusing a human embryo with an animal embryo; 4) fusing a human embryo with different genetic information; or 5) implanting an embryo created from the above acts into a human or animal uterus.
Human embryos may not be created for any purpose other than pregnancy. Moreover, human embryos shall not be produced by any of the following acts of fertilization: 1) selecting a sperm to select the sex of a baby; 2) using an egg or a sperm from a dead person; and 3) using a sperm or an egg from a minor. Any person would be prohibited from acquiring or transferring human sperm or eggs for valuable consideration, such as monetary or property gains.
Under Bioethics and Biosafety Act, Human embryos is not respected as Human being, but as “special things”.
Criminal law gives very little recognition to a fetus’s rights. Unlike tort law, criminal law is almost exclusively statutory. Under the Criminal Law, a “human being” is interpreted as “a person who has been born and who is alive.” Therefore, the fetus is not recognized as a protected class under some criminal statutes. There have been some exceptions, but these have been narrowly construed.
Feticide statutes, which make the destruction of a fetus a crime parallel to homicide, recognize the right of the fetus to be protected from certain conduct. Again, however, in the jurisdictions in which such statutes have been adopted, the courts have narrowly construed these statutes to exclude maternal conduct that leads to the death of the fetus.
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KEYWORD
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gamete, embryo, fetus, criminal protection, abortion, the fetus’s Legal status
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