Infanticide conviction exposes vacuum in Korea’s abortion law

A Korean Medical Association official speaks to reporters about a controversial nine‑month abortion case at the group’s office in Seoul, in this August 2024 file photo. Korea Times photo by Shin Yong-ju

A murder conviction in a case involving an infant who died immediately after birth during what is called a late-term abortion procedure has cast fresh light on the legal void surrounding abortion in Korea. This comes nearly seven years after the Constitutional Court of Korea struck down the country’s ban, as the issue remains unresolved amid a prolonged political stalemate.

Last week, the Seoul Central District Court sentenced the director of an obstetrics clinic in Incheon, identified by the surname Yoon, to six years in prison for murder in a case widely referred to as the “36-week abortion case,” along with a fine of 1.5 million won ($1,000). Judges also ordered the forfeiture of 1.15 billion won in proceeds that prosecutors said the director had earned over the years by performing illegal abortions on hundreds of patients.

The operating surgeon, identified only by his surname Shim, was sentenced to four years in prison, while the mother, surnamed Kwon, received a three‑year sentence suspended for five years after the court found her guilty as an accomplice to murder.

The judges ruled that the baby was delivered live before being killed outside the mother’s womb, saying the case met the legal definition of murder rather than abortion.

Korean courts have generally held that, under the Criminal Act, a fetus becomes a “person” once the delivery process begins, making it difficult to apply murder charges before that point. From the onset of labor or surgical delivery onward, however, it is treated as a person for criminal law purposes, so intentionally causing its death can amount to homicide — a principle the court applied in this case.

Yet the court also said it was difficult to hold only the defendants responsible, pointing to the legislative vacuum that has persisted since the Constitutional Court’s 2019 decision on the abortion ban. It noted that, because the National Assembly has failed to pass follow‑up legislation, confusion remains around women’s rights to self‑determination even after abortion was decriminalized, and said this was a factor it took into account.

The abortion clauses in the Criminal Act formally lost effect in 2021, but no replacement legislation has been enacted, leaving the nation without clear statutory rules on gestational limits.

Last year, lawmakers from both the liberal Democratic Party of Korea and the conservative People Power Party introduced several bills to follow up on the 2019 decision, but the effort remains stalled at the introduction stage.

“Up to now, there have been so many issues like increases to the medical school quota and public medical schools that, to be honest, we have not really had a serious discussion about this,” a secretary for Rep. Nam In-soon, who has been active on the issue, told The Korea Times.

On the most sensitive question — up to how many weeks abortion should be allowed — there is not even a starting point for compromise.

“None of the bills that have come out so far contain detailed, concrete provisions on weeks,” the secretary said. “The meetings hosted by the Office for Government Policy Coordination have not produced any agreement.”

The secretary said the issue is not something the ruling party can keep shelving. She noted that under the Lee Jae Myung administration, “improving systems related to pregnancy termination and introducing abortion medication” was designated last year as a national priority, and said the ruling party seeks to use that mandate to push the issue more actively this year.

Lee Seok-yeon, chairman of the presidential committee of national unity, also criticized the Assembly over the stalemate earlier this month, saying it is tantamount to “dereliction of duty.”