헌법상 태아의 보호와 임신중절 (Constitutional protection of the fetus and abortion)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 28권 / 4호 / 129 ~ 148페이지
· 저자명 : 이광진

초록

The current Constitution does not prescribe the right to life. However human life is protected by basic rights, whether or not there is a provision guaranteed in the Constitution.
There is no doubt that the subject of the right to life includes the fetus, which is a life that has not yet been born.
When does the fetus become the subject of the right to life as human? This is directly related to the issue of being protected from abortion, which is forced to die before the fetus can even begin life as a human being.
And the problem of abortion is related to the fetus’s right to life, the mother's privacy or self-determination regarding pregnancy.
The U.S. Supreme Court has taken the position that it is a constitutional violation if the legal discipline of abortion causes undue burden on pregnant women. And recently, the U.S. Supreme Court ruled that two provisons(admitting privileges requirement, surgical-center requirement) in a texas Law place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution[Whole Woman’s Health v. Hellerstedt, 579 U.S. 2016)].
By the way, I think that the consent of the spouse prescribed by current Mother and Child Health Act is unconstitutional according to the precedent of the United States. This is because it puts an undue burden on the woman to infringe her self-determination on pregnancy. Therefore, I think it is necessary to revise(amend) the Mother and Child Health Act to supplement the counsultation model in the current term model.

영어초록

The current Constitution does not prescribe the right to life. However human life is protected by basic rights, whether or not there is a provision guaranteed in the Constitution.
There is no doubt that the subject of the right to life includes the fetus, which is a life that has not yet been born.
When does the fetus become the subject of the right to life as human? This is directly related to the issue of being protected from abortion, which is forced to die before the fetus can even begin life as a human being.
And the problem of abortion is related to the fetus’s right to life, the mother's privacy or self-determination regarding pregnancy.
The U.S. Supreme Court has taken the position that it is a constitutional violation if the legal discipline of abortion causes undue burden on pregnant women. And recently, the U.S. Supreme Court ruled that two provisons(admitting privileges requirement, surgical-center requirement) in a texas Law place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution[Whole Woman’s Health v. Hellerstedt, 579 U.S. 2016)].
By the way, I think that the consent of the spouse prescribed by current Mother and Child Health Act is unconstitutional according to the precedent of the United States. This is because it puts an undue burden on the woman to infringe her self-determination on pregnancy. Therefore, I think it is necessary to revise(amend) the Mother and Child Health Act to supplement the counsultation model in the current term model.

참고자료

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