Women and doctors still navigate murky legal waters when it comes to abortion in Korea, despite the practice having been decriminalized over a year ago.

The ban on abortion was ruled unconstitutional in April 2019, but the National Assembly has failed to meet its deadline -- which expired on the last day of 2020 -- to make new laws to reflect the changes.

As of Jan. 1 last year, abortion was no longer a crime in Korea. But the lack of laws to guide practice may be undermining women’s rights to access services.

In a closed-door briefing last week, a Ministry of Health and Welfare official characterized abortion as being “neither legal nor illegal” in Korea.

The laws that gave the basis for punishing abortion have become obsolete, but doctors can still be penalized for offering certain abortions, according to Jeong Hyeon-seok, a lawyer specializing in health care laws. 

“We are kind of in a limbo,” he said.

“All medical practices done in South Korea are specified by the national health insurance service. Not all of them are covered, but they need to be recognized and specified in the system in order for doctors to be able to provide them.”
 
The Mother and Child Health Act, which was legislated in 1973, outlines five circumstances under which abortion is permitted. Those circumstances are when the pregnant woman or her partner suffers from heritable disabilities or diseases; when the pregnancy is caused by rape or incest; and when continuing the pregnancy poses a serious health risk to the woman.

“Abortions performed for any other reason constitute unspecified medical practices, which is a violation of national health insurance laws,” Jeong said. He said although unlikely, if found, doctors could be subject to administrative measures.

Despite losing its illegal status, abortion services are provided covertly, according to Dr. Kim Dong-suk, an obstetrician–gynecologist in Seoul.

“You wouldn’t find clinics that advertise or even openly admit that they provide abortion services,” he said.

Kim said this was due to a combination of unclear legal boundaries and a fear of backlash. “Individuals or groups who are against abortion may boycott or otherwise threaten clinics that offer them.”

Another Seoul-based obstetrician-gynecologist who wished to be anonymous said that during his over two decades of practice, he saw demands for abortion drop year after year.

“I rarely see patients seeking an abortion, and this has been the trend for many years now,” he said.

He said, however, that in the news he was noticing increasing stories of women who get hurt after taking abortion medication on their own -- all of which are illegal and not approved for use in Korea.

“Abortion medications should be prescribed by a doctor after an ultrasound scan or other examinations in order to be safe,” he said. “Women are turning to risky means in the absence of official and safe routes for getting information and care.”

Most surveys indicate the internet is where women mainly look for information about abortion -- from how to find a provider to costs of care.

The oral drugs mifepristone and misoprostol have been pending approval from the Ministry of Food and Drug Safety for more than seven months now. In 2019, the Drug Safety Ministry also filed for blocking domestic access to Women on Web, a Canadian nonprofit that helps women access abortion drugs.

The latest report by the Korea Institute for Health and Social Affairs, a government research agency, noted that in the last three years, medication-induced abortion appeared to have risen. Last year’s survey found that 9.8 percent of women ages 15 to 44 years who have had an abortion said that they’ve tried abortion medication, marking a slight increase from 8.3 percent in 2018.

Dr. Choi Anna, who heads the Korean Society of Obstetrics and Gynecology’s task force for abortion laws, said the abortion landscape in Korea is facing what she terms a “legal vacuum.”

“It’s not quite accurate to say the abortion ban has been abolished in Korea,” she said. The Constitutional Court’s ruling may prevent doctors and women from being punished, but all of those laws restricting abortion are still there in the Criminal and Mother and Child Health Acts, she added.

Choi said that the scope of abortion among other critical considerations remaining unspecified -- notwithstanding the fact that abortion is becoming increasingly rare here.

The KIHASA report found the estimated number of surgical abortions have marked a staggering decline from 241,411 in 2008 to 23,175 in 2018.

According to Choi, there are several explanations for the decline in abortions in Korea.

In the 1970s and 80s, the government encouraged abortion in a campaign to lower the birth rate. “Back then, the government euphemistically called abortion a ‘menstrual adjustment procedure,’” she said. Sex-selective abortions were still common in Korea through the 1990s.

“There are also far fewer women of childbearing age now,” she said. “The high accessibility of Korea’s health care services makes contraception more easily accessible to women, and allows them to spot pregnancy early on.”

According to the KIHASA’s statistics, more than 90 percent of abortions in Korea are performed at or prior to 10 weeks of pregnancy. On average, abortions are done at six weeks of pregnancy.

Kim Seon-taek, a professor of constitutional law at Korea University, said unlike courts, lawmakers may be “less inclined to act on a controversy-ridden issue.”

“Our National Assembly is not doing its job of establishing a legal order after the Constitutional Court deemed some of the laws to be unconstitutional,” said Jeong, the medical lawyer. “The National Assembly’s negligence is exposing those providing and seeking services to undefined risks.”

By Kim Arin (arin@heraldcorp.com)