Court Rules Gender Notification Ban Unconstitutional

A medical law that bans physicians from informing parents of the gender of their fetuses is unconstitutional, the court said. The ruling came 21 years after the provision was enacted in 1987.

The Constitutional Court found Thursday that the law outlawing fetus sexual identification is against the Constitution in an eight-to-one ruling. A group of doctors in obstetrics and gynecology, whose licenses were suspended for having conducted prenatal gender tests for pregnant couples, had filed a constitutional petition.

In the nine-member court, eight judges found the practice unconstitutional and the remaining one said it is constitutional. Among the eight judges, five said it is inconsistent with the Constitution.

The court ordered the legislature to amend the second clause of Article 20 of the Medical Law, formerly the second clause of Article 19, by the end of next year. Until then, the clause will be in effect, the court said.

Though the clause in question still holds valid until the end of the next year, experts say that, in practice, the clause is a dead letter after the ruling, and that abortion cases, which are estimated to be around 340,000 cases a year, will likely grow.

“The provision that bans the notification of unborn babies’ gender is to address the imbalance of sex ratio and protect the fetuses’ right to survive by preventing the abortion of female fetuses. In this regard, the purpose of the law can be justified. However, the total ban, which extends to the final weeks of the pregnancy when abortion is impossible, is excessive,” said the court.

“Given a normal gestational period is 40 weeks, after 28 weeks of the pregnancy, abortion is virtually impossible because it is too risky. This means notifying the fetuses’ gender will not lead to abortion,” said the majority of judges.

The constitutional petitions were initiated in November 2005 by an ob-gyn doctor surnamed Roh, who had received a six-month suspension of his license for gender notification, and in December 2004 by a lawyer identified as Jeong, who was unable to know his baby’s gender even in the final month of his wife’s pregnancy.

verso@donga.com