Ban called unconstitutional in modern society as the current male-female sex ratio is nearly even.
In South Korea, the Constitutional Court – the country’s highest jurisdiction – has determined that a law prohibiting the disclosure of a fetus’s sex is unconstitutional. The ruling overturns a 37-year-old law that was previously created due to the country’s vastly uneven sex ratio.
During a 6–3 decision made on February 28, judges decided that Article 20(2) of the Medical Service Act, which bans the disclosure of a fetus’s sex before 32 weeks, was unconstitutional and ineffective since it had become common practice for doctors to reveal the sex of an unborn child. Sex-selective abortions, based on the traditional preference of sons over daughters, were also believed to no longer be a problematic issue countrywide.
In their majority opinion, the justices wrote, “South Korea has seen the growth of women in the socioeconomic field, and gender equality is steadily flourishing, leading to the decline of the preference for sons. A Statistics Korea report stated that sex ratios by birth are now within the normal range of natural sex ratios. The law restricts the fundamental right of parents to know the gender of their unborn child before the 32nd week of pregnancy, with only the very exceptional circumstance of sex-selective abortion.”
When the law was first implemented in 1987, it stipulated that the fetus’s gender was to be revealed at no point during the pregnancy, but the Constitutional Court decided in 2008 to amend the law, banning the disclosure of a fetus’s gender before 32 weeks of pregnancy.
Before and during this period many girls were, based on their gender, robbed of their chances at life due to the widespread preference for sons. The natural sex ratio currently stands at 104–106 boys to every 100 girls, but when the ratio reached its worst point during the 1990s, 116.5 boys were born for every 100 girls.
At the time, the sex ratio for firstborns was 108.5 while the sex ratio for second-born and third-born offspring was 117.1 and 193.7, respectively, highlighting a large imbalance and a likely mounting pressure to have at least a boy.
Abortions were illegal from 1953 through 2020, but illegal abortions were common. They were decriminalized in 2021 by the Constitutional Court.
The Constitutional Court also gave other reasons for its most recent decision, stating that it has become common practice in the medical field for doctors to inform those who are pregnant of a fetus’s gender before 32 weeks. “While many have been told by their doctor of the fetus’ gender before 32 weeks, there have been no cases of prosecution, referral, or prosecution for violation of this provision in 10 years. This shows that this provision has lost its normative regulation and has become a dead letter,” the court judged.
However, they “cannot confirm that the preference for sons has completely disappeared.”
Before the court decision, it had become common for pregnant women to visit popular local apps like Mommytalk and upload their ultrasound pictures while consulting with others to ask whether they were having a boy or a girl. Doctors were caught in a legal dilemma as well, torn between the law and the needs of curious parents. Commonly, they resorted to such expressions as “You should buy pink shoes” or “The unborn resembles the mother” if it was a girl – and the opposite if it was a boy.
Even physicians were not informed of the information on the unborn’s sex from a pregnant woman’s blood test result. It meant that doctors had to rely on ultrasound exams to find out the sex of the unborn. Those caught revealing the gender to future parents were subject to a license suspension of up to two years imprisonment, or a fine of up to 20 million won (14,975 dollars).
The new ruling is likely to be well received by expectant parents, the medical profession, and society at large. Last year, the Korean Medical Association stated to the court that the ban had “lost its effectiveness since the mid-2010s.” Others concurred. “In some cases, parents need to know the sex of the baby for health reasons, as some genetic illnesses or diseases are only specifically carried down to a boy or a girl,” said Kim Jae-yeon, Chairman of the Korean Association of Obstetricians & Gynecologists, to The JoongAng.
The average age of first-time mothers in South Korea was 33.5 as of 2022 compared to 31.6 a decade earlier, according to the Statistics Korea data. The figure has stayed above 30 since 2005. Last year the country’s fertility rate, already the world’s lowest, fell to a record low of 0.72 from 0.78.
