South Korea’s prohibition against the early disclosure of fetal sex has been rescinded by the Constitutional Court. (Image courtesy of Yonhap)
SEOUL, Feb. 29 (Korea Bizwire) – After 37 years, South Korea’s prohibition against the early disclosure of fetal sex, a measure initially implemented to combat gender-biased abortions fueled by a preference for sons, has been rescinded by the Constitutional Court.
The court, on a pivotal day, declared the section of the medical law that barred medical professionals from revealing the sex of a fetus to expectant mothers or their families before 32 weeks of gestation as unconstitutional, by a majority of six to three.
This decision effectively nullifies the restriction, reflecting a significant shift in the country’s legal stance towards gender equality and reproductive autonomy.
The ruling was primarily motivated by the considerable evolution in societal norms, particularly the expansion of gender equality consciousness and the mitigation of gender imbalances, which rendered the longstanding legislation obsolete.
The justices pointed out the notable advancements in women’s socio-economic status and the establishment of gender equality awareness as pivotal factors underpinning their judgment.
They also noted the diminishing influence of traditional Confucian values, which historically perpetuated a strong preference for male offspring.
At the heart of the Constitutional Court’s decision was the observation that the national sex ratio at birth had stabilized within the natural range, thereby diminishing the signs of artificial gender selection interventions that once skewed the demographics.
The ruling was primarily motivated by the considerable evolution in societal norms. (Image courtesy of Yonhap)
This stabilization, coupled with the decline in preference for sons, led the court to conclude that the ban on prenatal sex disclosure was an undue infringement on parental rights, lacking in contemporary relevance.
The origin of the prenatal sex disclosure ban dates back to the late 1980s and early 1990s, a period marked by rampant sex-selective abortions driven by a deeply ingrained preference for sons, exacerbated by family planning policies and advancements in medical technology.
The newborn sex ratio, which had escalated alarmingly, has since reverted to natural levels, indicating a decrease in artificial gender selection interventions.
This change was underscored by the absence of significant gender ratio disparities for third or subsequent children since 2014, further supporting the court’s rationale.
The regulation was initially enacted in 1987 in response to concerns raised by women’s and religious groups about the protection of fetal life and the prevention of gender imbalance.
However, as the gender ratio imbalance gradually corrected itself in the 2000s, the law faced criticism for not keeping pace with the changing times.
The law underwent a constitutional non-compliance decision by the court in 2008, which led to an amendment allowing sex disclosure after 32 weeks of pregnancy.
Despite this easing, the law continued to face criticism for restricting parents’ access to information and failing to address the reality of prenatal sex determination practices in medical settings.
In practice, indirect methods of disclosing fetal sex became commonplace in medical settings, and the lack of enforcement further diminished the law’s effectiveness.
The court’s recent ruling acknowledges these realities, reflecting a broader societal evolution where the original legislative intent has been largely achieved, rendering the provision obsolete.
Experts in obstetrics and gynecology largely view the decision as a rational reflection of contemporary societal norms.
However, concerns persist regarding the potential for an increase in sex-selective abortions, especially in light of the lack of comprehensive abortion laws following the court’s 2019 decision deeming the abortion ban unconstitutional.
Some justices emphasized the need for alternative legislation that advances the disclosure timeline while still protecting fetal life, underscoring the state’s ongoing responsibility to safeguard the unborn against abortion.
The decision marks a significant moment in South Korea’s legal and societal evolution, highlighting the dynamic interplay between law, societal values, and medical ethics in the face of changing times.
M. H. Lee (mhlee@koreabizwire.com)
