Ban on Fetus Sex Identification Case

[20-2(A) KCCR 236, 2004Hun-Ma1010, 2005Hun-Ba90 (consolidated), July 31, 2008]

In this case, the Constitutional Court ruled that provisions of the Medical Service Act which ban disclosure of the sex of a fetus are incompatible with the Constitution on the ground that such provisions not only infringe the physician's freedom of occupation, but also the parents' right to gain access to the information of the sex of their fetus without interference.

Background of the Case

1. 2004Hun-Ma1010 Case

The complainant married Lee ○-yeon on March 23, 2003 and registered the marriage around April 2003. The abovementioned Lee ○-yeon became pregnant around May 2004, and upon conducting an ultrasound examination on December 23, 2004, she requested the physician to tell the sex of the fetus. The physician, however, refused on grounds of Article 19-2 Section 2 of the Medical Service Act which states that "no medical person shall divulge the sex of the fetus which he/she had discovered through a diagnosis or examination of a fetus or a pregnant woman, to the pregnant woman herself, her family or any other persons". At this, the complainant filed a constitutional complaint on December 28, 2004, about one month before the scheduled delivery date, claiming that such a provision infringed his basic rights.

2. 2005Hun-Ba90 Case

The petitioner, a physician board certified in obstetrics and gynecology, has operated a maternity hospital in Dongjak-Gu, Seoul since 1999. The Minister for Health, Welfare, and Family Affairs ordered a 6 month suspension of the petitioner's physician's license on May 4, 2005, on the ground that the petitioner had confirmed the sex of a fetus to Ms. Choi ○-kyung, a mother of the fetus, three times

since July, 2001, thereby violating Article 19-2 Section 2 of the Medical Service Act.

Regarding the order of suspension, the petitioner filed a suit in the Seoul Administrative Court against the Minister, requesting cancellation of the license suspension (2005Gu-Hap16857). While this litigation was pending, the petitioner also filed a motion to requestfor a constitutional review of Article 19-2 Section 2 of the Medical Service Act. The court, however, denied both the request of cancellation of license suspension and the motion to request for a constitutional review of the Act on October 5, 2005.

At this, the petitioner subsequently filed a constitutional complaint on November 4, 2005, claiming that the Article 19-2 Section 2 of the Medical Service Act infringed the petitioner's freedom of occupation.

Regarding the underlying case, the petitioner has also appealed to the Seoul High Court (2005Nu24386) on October 18, 2005 and the case is still in the process of litigation.

Summary of Decision

Eight Justices of the Constitutional Court ruled that the Article 19-2 Section 2 and Article 20 Section 2 of the Medical Service Act, which ban disclosure of the sex of a fetus, is incompatible with the Constitution (incompatible: five Justices, unconstitutional: three Justices), dissented by one Justice who rendered an opinion of constitutionality. The Court decided that such provisions not only infringe the physician's freedom of occupation, but also the parents' right to gain access to the information of the sex of their fetus without interference. The summary of the reasons is as follows.

1. Opinion of Five Justices (Incompatible with the Constitution)

A.Banning physicians from disclosing fetal sex is intended to prevent abortions, especially sex selective ones carried out for reasons related to the sex of fetuses, thereby reducing sex ratio disparity among new born babies and protecting fetuses' right to life. Given the normal duration of pregnancy to be 40 weeks, there are certain stages of pregnancy during which an abortion can be relatively easily done.

After the early prenatal periods lapse, however, the practice becomes virtually impossible due to serious health concerns for the mother. Nevertheless, the Act, on the basis of a speculative assumption that sex selective abortions would be performed regardless of the stages of pregnancy, bans disclosure of the sex of a fetus to the parents even in the late prenatal period, thereby violating the principle of the least restrictive means. Moreover, the provision at issue of the Act fails to maintain the balance between legal interests as it places too much restrictions on the parents' right to gain access to the information of the sex of their fetus and on the physician's occupational freedom by banning physicians from providing such information even during the late stage of pregnancy in which carrying out an abortion is so unfeasible that there is little concern over the violation of the rights of the fetus. Therefore, the provision at issue is in violation of the Constitution.

B.Although the National Assembly revised all parts of the Medical Service Act on April 11, 2007, as Act No. 8366, in which Article 19-2 Section 2 was replaced by Article 20 Section 2, the two provisions have virtually the same meaning. Therefore, the revised provision also violates the Constitution on grounds that it infringes on the physician's occupational freedom and the parents' right to gain access to the information on the sex of their fetuses.

However, should the Court decide on the provision at issue as unconstitutional, a legal vacuum will be created due to the lack of basis for regulating the practice of disclosing fetal sex. Therefore, the Court decides to make a incompatibility decision in order to prevent the ensuing confusion. Article 20-2 of the current Medical Service Act will remain temporarily in effect until new provisions are legislated by December 31, 2009. Although Article 19-2 Section 2 of the former Medical Service Act is neither effective nor applicable anymore since it had been fully revised by the current Medical Practice Act, it is still regarded as effective and applicable to the case of 2005Hun-Ba90. Therefore, we also declare that the former Article 19-2 Section 2 should cease to be and applicable to the case from now and a new provision will apply to the case when the National Assembly completes the revision on the Medical Service Act.

2. Opinion of Three Justices (Simply Unconstitutional)

The provisions at issue not only infringe on the occupational freedom of physicians and the parents' rights to gain access to the information on the sex of their fetuses derived from the general right of personality, but also limits the parents' right to protect and raise their fetuses.

The legislative purpose of the provisions in this case is to prevent abortions based on reasons of the sex of fetuses, thereby reducing sex ratio disparity among newborns and protecting the life of fetuses. However, the Korean Criminal Act has already regarded abortions as a crime in its Article 269 and Article 270, and stipulated related punishments thereof. Therefore, the legislative purpose of protecting fetuses' life can be sufficiently accomplished by the abovementioned provisions in the Criminal Act. In this regard, the aforementioned legislative purpose of the provisions at issue cannot be justified because the provisions assume that informing parents of the sex of their fetus itself deprives of the fetus' life and therefore, illegitimately presume that protection of the fetal life and prevention of physician's disclosure of fetal sex are correlated with each other. For these reasons, the provisions at issue are unconstitutional, as the purpose of legislation cannot be considered legitimate and the policy of banning disclosure of fetus sex is a system that cannot justify itself. Therefore, a decision of unconstitutionality must be made, so that the law will lose effect immediately.

3. Dissenting opinion of One Justice (Constitutional)

A fetus's sex is decided naturally, with no regard to the parents or physician's will. Therefore, in 2004Hun-Ma1010 case, the benefit of having the right to know the fetus's sex prior to birth is practically limited to merely satisfying the instinctual curiosity of human beings to know the sex of their future family member and preparing for the life after the baby is born pursuant to the child's sex. Therefore, there is no possibility for infringement on the complainant's fundamental rights guaranteed in the Constitution as a father of a fetus. Consequently, this constitutional complainant is not justiciable.

On the other hand, regarding 2005Hun-Ba90 case, the possibility of abortion related to reasons of fetus's sex still exists even in the later part of pregnancy, which may cause serious health problem to the mother. For this reason, it is inevitable to prevent physicians from informing parents of the sex of their fetus throughout the entire duration of pregnancy in order to achieve the legislative purposes of protecting the life of fetus and reducing sex ratio disparity of newborns. In addition, the public benefit to be reaped by the provision at issue such as protection of the life of fetus is far greater than the infringement on occupational freedom to be caused by the provision at issue. Therefore, the Provision is not in violation of the principle against excessive restriction.

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Parties

Complainant

Chung ○-wong (2004Hun-Ma1010)

Representative: Yoon Yang Kim Shin & You (Whawoo)

Attorney in Charge: Son Tae-ho et al.

Petitioner

Roh ○-sook (2005Hun-Ba90)

Attorney in Charge: Park Bo-moo et al.

Underlying Case

Seoul Administrative Court, 2005Gu-Hap16857, Cancellation of the License Suspension (2005Hun-Ba90)

Holding

1. Article 19-2 Section 2 of the Medical Practice Act (partially revised by Act No. 3948 on November 28, 1987 but before fully revised by Act No.8366 on April 11, 2007) is incompatible with the Constitution. The courts and all central and local governmental

institutions shall suspend applying the Provision immediately.

2. Article 20 Section 2 of the Medical Practice Act (fully revised by Act No.8366 on April 11, 2007) is incompatible with the Constitution, and temporarily applied until the legislator revises it by December 31, 2009.

Reasoning

I. Introduction of the Case

A. Introduction of case

(1) 2004Hun-Ma1010 Case

The complainant married Lee ○-yeon on March 23, 2003 and registered the marriage around April 2003. The abovementioned Lee ○-yeon became pregnant around May 2004, and upon conducting an ultrasound examination on December 23, 2004, she requested the physician to tell the sex of the fetus. However, the physician refused on the grounds of Article 19-2 Section 2 of the Medical Service Act, which states, "no medical person shall divulge the sex of the fetus which he/she had discovered through a diagnosis or examination of a fetus or a pregnant woman, to the pregnant woman herself, her family or any other persons". At this, the complainant claimed that such a provision infringed his basic rights, and filed a constitutional complaint on December 28, 2004, about one month before the scheduled delivery date.

(2) 2005Hun-Ba90 case

The petitioner, a physician board certified in obstetrics and gynecology, has operated a maternity hospital in Dongjak-Gu, Seoul since 1999. The Minister for Health, Welfare, and Family Affairs (hereinafter the "Minister") ordered a 6 month suspension of the petitions physician's license on May 4, 2005, on the grounds that the petitioner had confirmed the sex of a fetus to Ms. Choi ○-kyung, the mother of the fetus, three times from July, 2001, thereby violating

Article 19-2 Section 2 of the Medical Service Act.

Regarding the order of suspension, the petitioner filed a suit in the Seoul Administrative Court against the Minister, requesting cancellation of the license suspension (2005Gu-Hap16857). While this litigation was pending, the petitioner also filed a motion to request for constitutional review of Article 19-2 (Section 2) of the Medical Practice Act. The court, however, denied both the request of cancellation of license suspension and the motion to request for constitutional review of the Act on October 5, 2005.

At this, the petitioner subsequently filed a constitutional complaint on November 4, 2005, claiming the Article 19-2 Section 2 of the Medical Practice Act violated petitioner's freedom of occupation.

Regarding the underlying case, the petitioner has also appealed to the Seoul High Court (2005Nu24386) on October 18, 2005 and the case is still in the process of litigation.

B. Subject matter of review

(1)The subject matter of this case is constitutionality of Article 19-2 Section 2 (hereinafter, the "Instant Provision") of the Former Medical Practice Act (partially revised by Act No. 3948 on November 28, 1987 but before fully revised by Act No.8366 on April 11, 2007, and hereinafter, the "Former Act"). (Other than the Instant Provision, the petitioner also asked Article 19-2 Section 1, Article 52 Section 1 and Article 53-3 of the Medical Practice Act to be reviewed. However, since the petitioner did not claim unconstitutionality of these provisions, we exclude those provisions from the subject matters of constitutional review.)

(2)Although the National Assembly revised all parts of the Medical Practice Acts on April 11, 2007, as Act No. 8366, in which Article 19-2 Section 2 was replaced by Article 20 Section 2, the two provisions have virtually the same meaning. Consequently, they will also share the same result regarding our conclusion about constitutionality of the provisions. Therefore, we decided to review Article 20 Section 2 of the current Medical Practice Act which was fully revised on April 11, 2007 as well.

[Instant Provision]

Former Medical Practice Act (partially revised by Act No. 3948 on November 28, 1987 but before fully revised by Act No.8366 on April 11, 2007)

Article 19-2 (Prohibition on Fetus Sex Distinction, etc.)

(2) No medical person shall divulge the sex of a fetus which he/she has discovered through a diagnosis or examination of a fetus or a pregnant woman, to the pregnant woman herself or her family or other person.

Medical Practice Act (fully revised by Act No.8366 on April 11, 2007)

Article 20 (Prohibition on Diagnosis of fetal sex, etc.)

(2) No medical person shall divulge the sex of a fetus which he/she has discovered through a diagnosis or examination of a fetus or a pregnant woman, to the pregnant woman herself or her family or other person.

2. Reason for Denying Motion to Request of Seoul Administrative Court, and Arguments of Complainant, Petitioner, and Related Bodies

(intentionally omitted)

3. Review on Justiciability

A. 2004Hun-Ma1010 case

(1) Whether directness is found

The rule of "direct infringement by law" means that restrictions of freedom, imposition on duty, or removal of rights or legal status are directly entailed by law itself without any specific action taken to implement it. Therefore, constitutional complaint filed against a law whose effect of infringement on basic right depends upon further administrative action is lack of directness (9-2 KCCR 94 ,104,97Hun-Ma38, July 16, 1997; 15-2(B) KCCR 581, 593, 2001Hun-Ma543, December 18, 2003).

Since the Instant Provision is intended to regulate physicians, the parents of fetuses may not be the ones whose basic rights are directly infringed by the Instant Provision. But it is the mother and the family members who are not allowed to be informed of the sex of the fetus by the Instant Provision's preventing physicians from disclosing the sex of their fetus to the parents. Were it not for the Instant Provision, it would become an ordinary practice for physicians to tell the mother or family members about the sex of their fetus whenever they wanted to be informed. Due to the Instant Provision, however, the mother and family members are deprived of the chance to know the sex of their fetus. Therefore, the Instant Provision directly infringes the mother's or family members' rights to access to know the sex of their fetus.

(2) whether self-relatedness is acknowledged

According to Article 68 Section 1 of the Constitutional Court Act, a constitutional complaint should be filed by the one whose constitutional rights are infringed by an exercise or non-exercise of governmental power. Here, the aggrieved party is the one whose own basic rights are directly and presently infringed by the exercise or non-exercise of governmental power, as opposed to a third party who has only indirect, factual or economic stakes regarding the issues in a constitutional complaint (5-1 KCCR 104, 111, 91Hun-Ma233, March 11, 1993; 11-1 KCCR 521,527, 97Hun-Ma382, April 29, 1999).

In this case, the complainant is the father of the fetus, although not the mother herself, who has the same parental right as the mother to raise the fetus after its birth, thereby having direct interests regarding the sex of the fetus. The Instant Provision bans disclosure of fetal sex not only to the mother but also to the family members, by which the father is prevented from having access to the information about the sex of their fetus. Since this is an direct infringement on the father's basic rights, complainant's self-relatedness to the Instant Provision is acknowledged.

(3) Whether justiciable interest and necessity of constitutional clarification is acknowledged

The purpose of constitutional complaint system is to provide relief against infringement of people's constitutional rights. Therefore, a constitutional complaint may be filed only when there are justiciable interests. Also, these justiciable interests should exist not only at the time of filing a constitutional complaint but also at the time of announcing a decision. In this case, the complainant filed this constitutional complaint on December 28, 2004, one month ahead of his wife's expected date of delivery and his wife gave birth to their son on February 4, 2005 from which the complainant became aware of the sex of his baby. Therefore, although complainant's filing this constitutional complaint would be held, "subjective" legal relief to the complainant could not be possible. In this Regard, no justiciable interests exist anymore.

But the Constitutional Court, recognizing the "objective" function of constitutional complaints of protecting the constitutional order, has identified that it may exceptionally find justiciable interest in cases where, though the subjective justiciable interest disappeared due to the change of circumstances happened during the review,specifically in case of on the merits involves issues critical to the defense and maintenance of the constitutional order such that their clarification is of constitutional significance, or cases where violations are likely to recur in the future (7-1 KCCR 687, 693-694, 91Hun-Ma44, May 25, 1995). Since the constitutionality issue of the Instant Provision has not been clarified, many similar constitutional questions can be raised by pregnant women or their family members. Therefore, review on merits regarding constitutionality of the Instant Provision is so critical to the defense and maintenance of the constitutional order in terms of precluding any possible infringement on the basic rights by unconstitutional provisions that the significance of constitutional clarification of the Instant Provision is acknowledged.

For the foregoing reasons, the constitutional complaint against the Instant Provision meets justiciable interest.

(4) Sub-conclusion

Therefore, this constitutional complaint against the Instant Provision satisfies directness, self-relatedness, thus is justiciable.

B. 2005Hun-Ba90 case

Constitutional complaints filed pursuant to Article 68 Section 2 of the Constitutional Court Act must meet the requirement of relevance of precondition of the challenged statute for the underlying case (7-2 KCCR 48, 58, 93Hun-Ba46, July 21, 1995). The relevance of precondition here means the requirement that constitutionality of a challenged statute be a precondition for disposition of the underlying case and therefore, the decision to be rendered by the Constitutional Court concerning whether the provision at issue is constitutional or not may alter the conclusion on the holding of the underlying case or change the legal significance with respect to the contents and effect of the underlying case (10-2 KCCR 116, 141, 96Hun-Ba33, et al. July 16, 1998). The petitioner, as a physician, informed the mother of the sex of her fetus despite the banning of such announcement by the Instant Provision, resulting in a six month suspension of his license. In this regard, if the Instant Provision is declared unconstitutional, the result of the underlying case, in which cancellation of the six month suspension of physician's license has been requested, will be different. Therefore, the relevance of precondition requirement is met in this case.

Also, the petitioner did not violate the time limit for filing a constitutional complaint as he filed the constitutional complaint on November 4, 2000, one month after the Seoul Administrative Court's decision to deny the complainant's motion to request for a constitutional review of the Instant Provision on October 5, 2005.

For the foregoing reasons, the petitioner's constitutional complaint is justiciable.

4. Exploring of Legislative Purpose and Social Background of the Instant Provision

A. Legislative purposes and history of the instant provision

Owing to advancement in medical technologies, the practice of prenatal identification of fetal sex was introduced in order to diagnose possible genetic diseases or congenial deformity of fetuses. In the

1980s, however, when our country had been achieving rapid growth of economy, the tendency to have less children and the development in medical technologies, combined with the Confucian tradition of so called "son preference" which had taken deep root in the society for a long time in history, led to increasing practice of sex selective abortion of female fetuses, resulting in serious imbalance in the sex ratio at birth. In other words, different from the original purpose, the practice of prenatal identification of fetal sex unexpectedly precipitated female feticide, resulting in a serious insult to the dignity and honor of human beings and the overall sex-ratio imbalance. Being aware of the problems, the legislature finally came to ban "the disclosure of the sex of fetus discovered through a diagnosis or examination of a fetus or a pregnant woman" in order to eradicate the practice of sex selective abortion, with an assumption that identification and notification of fetal sex itself implied the possibility of sex selective abortion: in order to protect the life of fetuses and health of pregnant women in a social situation where son preference was prevalent and female feticide had been openly carried out despite its obvious criminal character, the revised the Medical Practice Act by Act No. 3948 was promulgated on November 28, 1987 which prevented physicians from telling fetal sex.

When the Instant Provision was initially enacted, there was no separate criminal punishment imposed on physicians for violating the provision. But later, it was widely acknowledged that suspension or revocation of physician's license might not be enough to fulfill the legislative purposes. As a result, a new provision imposing criminal punishment on physicians who disclosed fetal sex was inserted as Article 67 when the Medical Practice Act was revised by Act No. 4732 on January 7, 1994, thereby any physician who violates this provision will be sentenced to up to three years in prison or receive fine up to 10 million Won.

B. Changes in tendency of son preference

The Korea Institute for Health and Social Affairs (KIHSA) asked married women ranging from 20-44 years old about "the number of child(ren) they currently have and the future plan for having (an)

additional child(ren)" and published the survey result on December 2005. According to the survey, among the women who have no child at present, 10.1% say that they have no plan to have any childin the future. Also, 66.7% have plan to have one child regardless of sex; 3.0% want to have one daughter; 1.3% want to have one son; 14.3% want one daughter and one son;0.4% want to have two sons; 0.8% want to have two daughters; and 3.4% want to have three or more children.

Among the women who have one son, 60.3% answer that they have no plan for an additional child. Also, 28.5% of those women say that they want to have one more child regardless of sex; 0.5% want to have one more son; 8.3% want to have one more daughter; 1.1% want to have one more son and one more daughter; 1.1% want to have two more daughters; and 0.3% want to have two more sons. Among those who have one daughter, 50% answer no plan for an additional child. Also 32.2% of those women want to have one more child regardless of sex; 13.7% want to have one more son; 0.3% want to have one more daughter; 2.1% want to have one more son and one more daughter; 0.7% want to have two more sons; 1.0% want to have three or more daughters; and none of them want to have two more daughters.

Among those who have two sons and no daughter, 97.1% say that they have no plan for an additional child. 1.0% want to have one more child regardless of sex; and 1.9% want to have one more daughter. None of them want to have one more son and one more daughter, nor two more sons or two more daughters. Among those who have two daughters and no son, 89.9% answer that they have no plan for an additional child. 1.3% say that they want have one more child regardless of sex; 8.6% want to have one more son; and 0.3% want to have two more sons. None of them answer that they want to have one, two or three more daughters.

Among those who have one son and one daughter, 97% answer that they have no plan for an additional child. 2.1% want to have one more child regardless of sex; 0.7% want to have one more son; and 0.2% want to have one more daughter. Among those who have three or more children, 98.5% answer that they have no plan for an additional child; 0.3% want to have one more child regardless of sex;

and 1.3% want to have one more son.

The survey result indicates that there seems no conspicuous trend showing specific preference for sons in recent years. Clearly, it seems that son preference tends to be far weaker than before and may soon disappear in the society. But we cannot say that such preference absolutely vanish into the history, given the different answers between those who have one son and those who have one daughter, which somewhat shows the remaining vestige of son preference in Korea.

C. Changes in sex ratios

According to the result of the "2006 Birth Statistics" published by the Korea National Statistical Office on August 2007, the overall sex ratio at birth (the average ratio of male newborns to 100 female newborns) in Korea was 117.5 in 1986 around which the Instant Provision had been enacted, whereas the sex ratio in 2006 decreased to 107.4, approaching to the natural sex ratio of 106:100, meaning that 106 boys are born for 100 girls in natural stage without intervention. The sex ratio for the third child was 138.5 in 1986, 202.1 in 1993, 202.2 in 1994, and subsequently subdued by 121.8 in 2006. Although the abovementioned ratio has been continuously decreased since 1994, it still seems that relatively more boys are born than girls in case of a third child, which may suggest the lingering use of sex-selective abortion.

Moreover, considering that the sex ratios at birth had continuously increased for 10 years since the enactment of the Instant Provision in 1987 (overall sex ratio at birth was 108.8) and particularly that the sex ratios for the third child had sharply increased from 134.7 in 1987 to 202.2 in 1994 when the criminal punishment started to be imposed on physicians violating the Instant Provision, it is doubtful whether the ban on announcement of fetal sex by the Instant Provision has been really effective to address the problem of sex-selective abortion. From 1994 (overall sex ratio at birth of 115.2 and sex ratio at birth for the third child of 202.2) to 1995-1996, the sex ratios at birth showed a declining trend (overall sex ratios at birth from 113.2 to 108.2; sex ratios for the third child from 177.2 to 133.5) and after then, had maintained the status quo (1998-2002:

overall sex ratio at birth 110.1110.0; sex ratio for the third child 144.7 140.0) until 2004-2006 when a declining trend was observed once again (overall sex ratios 108.2 107.7107.4; sex ratios for the third child 132.0 127.2 121.8)

Based on the statistics, we found that there is little correlation between the ban and the legislative purpose of alleviating the skewed sex ratios by preventing sex-selective abortions. Also, the recent figure close to the natural ratio of 106:100 are more likely due to the changes in the traditional legacy of son preference than the ban on notifying parents of fetal sex.

5. Review on Merits

A. Opinion of Incompatibility with the Constitution by Justice Lee Kang-kook, Justice Min Hyeong-ki, Justice Mok Young-joon and Justice Song Doo-hwan

(1) Basic rights at issue

The Instant Provision prohibits any medical personnel from notifying a pregnant woman herself, her family members or any other persons of the sex of fetuses of which they become aware during a diagnosis or examination of a fetus or a pregnant woman. As fetal sex is a piece of information acquired in the course of legitimate medical procedures for protecting maternal and fetal health, notifying such information to a pregnant woman or her family naturally falls within the ordinary course of medical practice by physicians. Therefore, banning physicians from providing such information infringes on physicians' occupational rights.

Meanwhile, given the fact that the general right of personality derived from Article 10 of the Constitution (2 KCCR 306, 310, 89Hun-Ma82, September 10, 1990; 15-1 KCCR 624, 642 2002Hun-Ka14, June 26, 2003) encompasses the realm of privacy as an attribute of personality, the parental right against the governmental infringement on gaining access to information of the sex of their fetus who will soon become one of the family members is also protected by the general right of personality. In this regard, the Instant Provision places restriction on the parental right to gain access to

information about the sex of their fetus without state intervention, which is derive from the general right of personality.

On the other hand, the physicians' occupational right and the parents' right not to be hindered from getting access to information on the sex of their fetus can be restricted to the extent necessary for protecting national security, maintaining law and order or for public welfare, within the scope of not violating essential aspects of the rights (10-1 KCCR 118, 124-125, 96Hun-Ba2, February 27, 1998; 14-1 KCCR 118, 124, 99Hun-Ba117, February 28, 2002). Therefore, we need to review whether the Instant Provision infringes on the abovementioned basic rights beyond the acceptable exceptions.

(2) Constitutionality of the Instant Provision

(A) Legitimacy of legislative purposes and appropriateness of a means

As already reviewed, the Instant Provision banning physicians from revealing fetal sex was enacted on the basis of legitimate purposes to address the skewed sex ratios by prohibiting abortions, especially sex-selective abortions, and to protect the fetus's right to life.

On the other hand, given the current situation where the deep rooted attitude of son preference has yet to be completely eradicated, thwarting sex-selective abortions by banning notification of the sex of fetus by physicians seems plausible, too. Therefore, as the Instant Provision is expected to contribute to achieve and promote the legislative purposes to some degree, the means to achieve the purposes is also appropriate.

(B) The least restrictive means

As the Instant Provision imposes limitation on both the occupational freedom of the physicians and the parents' right to access information on the sex of their fetus, we need to consider whether the legislature properly introduced the least restrictive means to achieve the purposes.

1) There is no doubt about the fact that the practice of diagnosing

a pregnant woman and notifying the pregnant woman or her family of the result naturally falls within the course of action intended to be conducted by physicians and all parents do have the fundamental and inherent right to access every information regarding their fetus including its sex without interference. Accordingly, even in cases where some restrictions on the fundamental rights are inevitable, such restrictions should be as minimum as possible and if not, any provision failing to impose the least restrictive limitation must be in violation of the Constitution.

Considering our long, deep-seated tradition of a strong preference for sons over daughters and the background of enacting the Instant Provision, although an outright adherence to the attitude of son preference has almost disappeared, there is no guarantee that the practice of sex selective abortion in Korea is completely eradicated. If there is even the slightest chance that notification of the sex of fetus may cause sex selective abortions, prohibiting such notification is reasonable.

But, given the normal duration of pregnancy to be approximately 40 weeks, there is a certain stage of pregnancy during which an abortion can be relatively easily done. After the early prenatal period lapses, however, abortion becomes virtually impossible due to serious health concerns for the mother, as well as the fetus. For example, Article 14 of the Mother and Child Health Act exceptionally allows an induced abortion for people with rare diseases such as eugenic or genetic mental handicap or physical disease. But even this exception is not acceptable anymore after 28 weeks of pregnancy under Article 15 Section 1 of the Enforcement Decree of the Mother and Child Health Act. Usually in the late prenatal period, abortion is strictly prohibited because it entails serious health risk to the mother and the fetus. Therefore, even if notification of fetal sex is exceptionally allowed, there would be almost no chance for a sex-selective abortion to be carried out during the later stage of pregnancy when an abortion is virtually impossible due to the health risks.

Therefore, if a law allows notification of fetal sex only during the later stage of pregnancy, that will protect both the physician's occupational freedom and the parents' right to gain access to information about their fetus without endangering fetal life by induced

abortion. By allowing giving notification of fetal sex during the period when an abortion is practically impossible, the legislative purposes of the Instant Provision would also be accomplished without difficulties. Nevertheless, the Instant Provision, on the basis of speculative assumption that sex selective abortions would be performed regardless of the stages of pregnancy, bans the disclosure of the sex of the fetus to the parents even in the late prenatal period, violating the principle of the least restrictive means in terms of excessively limiting the fundamental rights of the parents and the physicians.

2) The Korean Criminal Act provides a penal punishment for all kinds of abortion including sex-selective abortion. Under the law, all abortions excluding the exceptional cases prescribed in the Mother and Child Health Act are criminally punished in order to protect the life of fetus. In addition to this, the Instant Provision specifically prohibits the notification of fetal sex in order to root out the practice of "sex-selective" abortion. It seems that the Instant Provision was enacted because the penal punishment in the Criminal Act by itself deemed insufficient to prevent the abortions carried out for reasons related to the sex of fetuses.

But the Instant Provision goes beyond the minimum necessary degree, amounting to excessive restriction on the basic rights, because it bans notification of fetal sex on the basis of a undefined speculation that the sex-selective abortion, which had once been widespread in times when the policy of birth control was implemented by the government, would be still prevalent in these days when childbirth campaign is carried out by the government to address serious concern over the low birth rate.

The nationwide research on the actual condition of induced abortions in Korea, conducted by the Ministry for Health, Welfare and Family Affairs on September 2005, shows that 143,000 cases of induced abortions, which is 42% of the whole numbers of abortion carried out in a year (342,000), were performed on unmarried women and 76% of the induced abortions done on married women were performed because they did not want to have children anymore or wanted to control the frequency in conceiving a baby. The research shows that, however, only 1.2% of abortions were conducted for reasons related to the sex

of fetus. On the basis of the survey result, we can find that most of abortions are done for other reasons than the sex of fetus. Therefore, the absolute ban on notification of fetal sex seems to be based on an unreasonable preconception that the notification of fetal sex itself, considered as a precursor of sex selective abortion, is the very cause of abortion. Given the fact that son preference trend has been disappearing and the sex ratio, which was 107.4 in 2006, is approaching to the natural sex ratio of 106, it is doubtful whether the disparity in the sex ratio is still serious enough to be a social problem in today's Korean society and whether the notification itself is the very cause of sex selective abortion. In this regard, the ban on abortion during the entire period of pregnancy seems to be excessive, going against the principle of the least restrictive means.

(C) Balance between legal interests

The physicians' practice to provide relevant medical information to their patients is important part of the job, which should not be hindered.

Also, the sex of fetus is important information to parents and family members and parents' desire to know the sex of their fetus seems intrinsic and natural reaction. Moreover, being informed about the sex of fetus can provide the parents with better chances to give proper prenatal care to the unborn baby and prepare for childcare and family life after the baby's birth. As such, the individual's right to gain access to information on the sex of fetus without interference is included in the basic rights worthy of protection.

On the other hand, life of a fetus has priority over the physicians' occupational freedom or the right to gain access to information on the fetal sex without interference possessed by the pregnant woman or family members. And the State has duty to protect the fetal right. Having said that, such priority should not extend to the period when the protection of fetal life is not at serious risk anymore. Even when the public interest to be protected is very fundamental and important, the corresponding private right should be valued over the public interest in case where few possibility of infringement on the public interest is expected.

The Instant Provision, however, infringes on the basic right of physicians and a pregnant woman or her family members by imposing limitation on their occupational freedom and interfering with getting access to the information on the sex of the fetus even after the period when a need to protect the public interest almost evanesces. Therefore, the Instant Provision fails to keep the balance between the legal interests as it excessively infringes on the private rights.

(D) Sub-conclusion

As reviewed above, the Instant Provision is in violation of the Constitution, infringing on the physicians' occupational right and the pregnant or the family's right to gain access to information on the fetal sex without interference, and thereby violating the principle against excessive restriction.

(3) Reasons for decision of incompatibility with the Constitution

Although the Instant Provision was revised by Act No. 8366 on April 11, 2007 and replaced by Article 20 Section 2, there is no change in its content. As a result, the revised Article 20 Section 2 still possesses the same problems and questions as the Instant Provision (Article 19-2 Section 2 of the Act) presented. Accordingly, considering the consistency in legal system and judicial economy, we declare Article 20 Section 2 unconstitutional, together with the decision of unconstitutionality regarding Article 19-2 Section 2.

But, if we render a decision of simple unconstitutionality which instantly nullifies the Instant Provision and Article 20 Section 2, it may create a vacuum in the legal system because no provision becomes existent any more as a basis for regulating the practice of giving information on fetal sex, leading to an unwanted result of allowing notification of fetal sex in any time during the pregnancy, as opposed to the original intent of the Court's unconstitutionality decision that preventing medical personnel from revealing fetal sex throughout the entire stages of pregnancy excessively infringes on the fundamental rights of physicians and parents.

Therefore, we decide to deliver a decision of incompatibility with

the Constitution, instead of a decision of simple constitutionality, and urge the legislature to enact a new law by December 31, 2009. Regarding Article 20 Section 2, we tentatively allow the application of the outlawed provision until the legislature cures the constitutional defects through statutory revision.

Meanwhile, Article 19-2 Section 2, applicable for 2005Hun-Ma90 case, has already been revised and not effective anymore. Therefore, we order that Article 19-2 Section 2 ceases to be applicable to the instant case and after the legislature revises the unconstitutional provision, the new provision will apply to the case.

B. Opinion of Simple Unconstitutionality by Justice Lee Kong-hyun, Justice Cho Dae-hyen and Justice Kim Jong-dae

We agree with the majority opinion in that the basic rights infringed by the Instant Provision are physicians' occupational freedom and parents' right to have access to information on the sex of their fetus without interference, derived from the general right of personality. In addition to this, we consider that the Instant Provision restricts the parents' right to protect, educate and raise their own child (in this case, their fetus).

Article 36 Section 1 of our Constitution articulates that "marriage and family life shall be entered into and sustained on the basis of individual dignity". Here, "individual dignity" refers to the respect to an individual as an independent person and to an individual's self determination and family autonomy in making decisions regarding marriage and family life. Our Constitution, which regards human dignity as the most previous value, does not tolerate State's action arbitrarily enforcing ideology or policies set by the State on individuals or families in forming their own marriage and family life (12-1 KCCR 427, 445, 446, 98Hun-Ka16, et al., April 27, 2000; 17-1 KCCR 1, 23, 2001Hun-Ka9, February 3, 2005). It is desirable for the State to faithfully honor individuals' lifestyles and the freedom of personal and familial choice in matters of marriage and family life, and not to enter the private realm of the family relationships rooted in intimate and personal interaction based on respect and affection. In this regard, as it is cardinal that the protection, care and nurture of a

child reside first in the parents, we have little doubt that the parents' right to protect, educate and raise their own child derived from Article 36 Section 1 of the Constitution would be offended by the Instant Provision which arbitrarily restricts the parents' right to have accurate information about the sex of their fetus as well as the fetal health status by preventing physicians from notifying parents of the fetal sex.

According to Article 37 Section 2 of the Constitution, if it is necessary for the State to limit the intrinsic human rights such as the physicians' occupational freedom, the right of parents to have access to information about the sex of their fetus without interference and the parents' right to protect, educate and raise their own child or fetus, any restrictions on such freedoms and rights may be allowed only when necessary for national security, maintenance of law and order or public welfare. Even when such restriction is imposed, no essential aspect of the freedoms or rights shall be violated, or in other words, the principle against excessive restriction shall not be violated: the legislative purposes for imposing restrictions on the basic rights of citizens should be legitimate; a means chosen by the State to achieve the purposes should be appropriate; the means chosen should be the least restrictive measures; and the gravity of the public interests justifying the intervention should be more than that of the private interests to be restricted (14-1 KCCR 410, 428, 2001Hun-Ma614, April 25, 2002).

As for the legislative purpose in this case, the Instant Provision, which seems to regard an act of notifying fetal sex itself as a precursor of sex selective abortion, was enacted in order to prevent abortions, specifically sex selective ones carried out for reasons related to the sex of fetuses, thereby reducing sex ratio disparity among new born babies and protecting the fetuses' right to life. However, the Korean Criminal Act has already stated abortions as a crime in Article 269 and Article 270, and stipulated related punishments thereof. Therefore, the legislative purpose of protecting fetuses' life can be sufficiently accomplished by the abovementioned provisions in the Criminal Act. Separate from the criminal punishment, nevertheless, the Instant Provision additionally prohibits disclosure of fetal sex regarding it as a threat to fetal life just like an abortion. Therefore, we think it is important to review whether the Instant Provision is necessary to

protect fetal life, despite the existence of criminal punishments provided by the Criminal Act.

Disclosing fetal sex cannot be treated same as practicing an abortion because the former is merely an act of giving information about the sex of fetus to the parents, not an act of directly imposing threat to the life of fetus, whereas the latter is an act of directly depriving the life of fetus. It is human nature for parents to want to have information about the sex of their fetus; and it is also a basic right for parents to know about their fetus that will be a new member of the family in the near future and to prepare for the new family life after the fetus' birth. Disclosing fetal sex itself does not do any harm to anyone including the fetus. Therefore, there is no need to particularly prohibit disclosure of fetal sex determined in the course of routine medical examination during pregnancy in order to help people to lead a happy family life.

Of course, there could be some very exceptional cases where parents who become aware of the sex of their fetus decide to abort pregnancy when the fetus is not the wanted sex. Even in these occasions, however, it is the practice of abortion, not the disclosure of fetal sex, which directly deprives a fetus of its life. Therefore, fetal life can be sufficiently protected by prohibiting and punishing the practice of abortion itself. In this regard, the legislative purpose of the Instant Provision cannot be justified because it assumes that informing parents of the sex of their fetus itself deprives the fetus of its life and regards such disclosure as unethical and repugnant to social norm, subjected to severe social condemnation, thereby illegitimately relating the protection of the life of fetus to the prevention of disclosure of fetal sex.

As the Instant Provision does not appertain to any of the conditions presented by Article 37 Section 2 under which restriction on the basic rights is selectively allowed, we do not even have to trouble to review whether the means chosen by the State is appropriate; whether the means chosen were the least restrictive ones; or whether the legal interests are balanced or not. The Instant Provision should be regarded unconstitutional for illegitimately restricting the occupational freedom of physicians and the parental right to have access to information about the sex of their fetus without interference derived from the

general right of personality

As above seen, the provisions at issue are clearly unconstitutional and we found no need to declare a decision of nonconformity to the Constitution, as the purpose of legislation cannot be considered legitimate and the policy of banning disclosure of fetal sex is a system that cannot justify itself. Therefore, a decision of "simple" unconstitutionality should be made so that the law will lose effect immediately.

6. Conclusion

As reviewed above, all the Justices except Justice Lee, Dong-heub, agreed that the Instant Provision is in violation of the Constitution. Regarding this, however, Justice Lee Kang-kook, Justice Min Hyeong-ki, Justice Mok Young-joon and Justice Song Doo-hwan presented an opinion of incompatibility with to the Constitution, whereas Justice Lee Kong-hyun, Justice Cho Dae-hyen and Justice Kim Jong-dae presented an opinion of simple unconstitutionality. At this, we declare a decision of incompatibility with the Constitution as a final decision, combining the opinion of simple unconstitutionality with the opinion of incompatibility, thereby fulfilling the quorum requirement stipulated in Article 23 Section 2 Item 1 for delivering a decision that a provision is in violation of the Constitution.

As a result, Article 19-2 Section 2 of the former Medical Practice Act is declared incompatibility with to the Constitution, and should cease to be applied. Regarding Article 20 Section 2 of the Medical Practice Act, we deliver a decision of incompatibility with the Constitution and the provision temporarily apply until revised by the legislature by December 31, 2009.

The decision is dissented by Justice Lee Dong-heub.

7. Dissenting Opinion of Justice Lee Dong-heub

I believe the constitutional complaint regarding 2004Hun-Ma1010 is not justiciable. And regarding 2005Hun-ba90 case, I believe the Instant Provision does not violate the Constitution. I dissent from the decision of incompatibility with the Constitution and the opinion of

unconstitutionality for the following reasons:

A. Possibility of infringement on the constitutionally guaranteed basic right of fetus' father by the Instant Provision (2005Hun-Ma1010 Case)

(1) Possibility of infringement on the "constitutionally guaranteed basic right"

The main sentence of Article 68 Section 1 of the Constitutional Court Act stipulates that "any person who claims that his/her constitutionally guaranteed basic right in the Constitution has been violated by an exercise or non-exercise of governmental power may file a constitutional complaint", meaning that a constitutional complaint may filed only by someone whose "constitutionally guaranteed basic right" is directly and presently infringed by an act or omission to act by the State. Therefore, a constitutional complaint is non-justiciable and should be dismissed if there is no possibility of infringement on the complainant's basic right by exercise or non exercise of governmental power (3 KCCR 358, 368, 89 Hun-Ma181, July 8, 1991; 10-2 KCCR 600, 605, 96Hun-Ma186, October 29, 1998; 12-2 KCCR 258, 263, 2000Hun-Ma156, August 31, 2000).

Regarding 2004Hun-Ma1010 case, as the constitutional complaint was filed based on an assumption that there existed an infringement on the "constitutionally protected basic rights" of the complainant such as the right to know and the right to pursue happiness, I need to first address the question whether there really are constitutionally protected basic rights of the complainant.

In relation to the issue, the opinion of the Court and the opinion of simple unconstitutionality state that the Instant Provision places limitation on the parental right to have access to information on fetal sex without interference, which is derived from the general right of personality under Article 10 of the Constitution. The opinion of simple unconstitutionality also adds that the Instant Provision restricts the parental right to protect, educate and raise one's own child as a constitutionally protected basic right as well.

However, I doubt whether the so-called parental right to have access

to information on fetal sex without interference or the parental right to protect, educate and raise one's own child is really the basic right to be protected by the Constitution and whether there is any possibility that the Instant Provision infringes the constitutionally protected basic right of the father of a fetus.

(2) Question regarding the right to know and the right to pursue happiness

Although the complainant argues that the Instant Provision infringes his constitutionally protected basic rights such as the right to know and the right to pursue happiness, those rights allegedly infringed by the Instant Provision cannot be regarded as basic ones enshrined in the Constitution.

The right to know, derived from freedom of expression under Article 21 of the Constitution, generally refers to the constitutionally guaranteed basic right to collect and process information, as a precondition for expressing one's opinions or ideas, which can be realized through state's guarantee of public access to generally accessible information, especially for the information held by governmental bodies. In this case, however, the information on fetal sex is neither possessed by the government (actually possessed by medical personnel), nor considered as generally accessible information. Therefore, the parental right to have prenatal information on fetal sex cannot be included in the category of so-called 'right to know'.

Also, the right to pursue happiness under Article 10 of the Constitution does not mean that people have a right to ask the State to take affirmative action to provide something necessary for the pursuit of their happiness. Rather, it means that people have a general right to freedom to do things necessary for the pursuit of their happiness without state's interference (7-2 KCCR 1, 32, 93Hun-Ka14, July 21, 1995). Therefore, it seems inappropriate to review this case solely on the basis of the right to pursue happiness, which is a general, abstract right whose concrete content is not specifically enumerated in the Constitution, without considering other basic rights in relation to the Instant Provision.

It seems that the opinion of the Court and the opinion of simple

constitutionality also understand this point, thereby adjudicating this case regarding the alleged violation of basic rights of parents on the basis of the general right of personality derived from Article 10 of the Constitution, not on the basis of the right to know or the right to pursue happiness as being brought up by the complainant. In this case, it is pretty unclear whether there really exist the so-called parental rights under our Constitution, which are arguably alleged to be restricted by the Instant Provision, and if any, what kind of constitutional provisions can be the basis of protection for such rights.

(3) Question of general right of personality

The opinion of the Court and the opinion of simple constitutionality present that the Instant Provision puts restriction on the parental right to have access to information on fetal sex without interference derived from the general right of personality that stems from Article 10 of the Constitution.

In general, the right of personality derived from Article 10 of the Constitution means a right to form, maintain and express one's personality and includes a right of reputation, a right to likeness, a right to one's name and voice. Also, in many cases such as regarding a right to request retraction of incorrect report in the Act of Registration of Periodical; a provision of the Juvenile Sex Protection Act which provides conditions for disclosure of personal information of a sex offender; inclusion of the publication of apology in newspapers etc. in the "suitable measures to restore the injured party's fame" in Article 764 of the Civil Act; the one year period of exclusion within which a lawsuit for denial of paternity should be instituted; and forced used of open toilet in a detention center, the Constitutional Court has adjudicated an issue of infringement of the general right of personality or made a decision on the basis of the general right of personality.

In this case, however, the benefits expected to be achieved from the parental freedom to be informed of the sex of their fetus before birth are no more than gratifying the parents' instinctive curiosity to know about the sex of their fetus who will be a new family member in the near future and providing a chance to prepare for the life after the

fetus' birth in advance, which is not directly related to form, maintain and express the complainant's personality.

Therefore, in adjudicating a case like this where the issue is whether parents have a constitutional right to be informed of the sex of their fetus before birth, if the Court acknowledges existence of the so-called parental right to have access to information about the sex of the fetus without interference as one of the basic rights guaranteed by the Constitution in relation to the general right of personality, such a decision will be not only bound to invite criticism that the scope of constitutionally protected basic rights is extended too much, but also considered unwarrantedly including the parental right, which is actually not guaranteed by the Constitution, in the category of the constitutionally guaranteed rights by borrowing the constitutional provisions about general, as opposed to specific, basic rights and applying them to this case.

Meanwhile, as shown in the opinion of the Court and the opinion of the simple constitutionality, if we recognize the parental right to have access to fetal sex information without interference to be a constitutionally protected basic right on the basis of the general right of personality, such recognition could bring about a problem as to whether refusal of a physician who diagnoses a pregnant woman after abolition of the Instant Provision to disclose the fetal sex even upon a request of the prospective parents may constitute an unlawful act in violation of the parents' right of personality or not. In this regard, the opinion of the Court and the opinion of the simple constitutionality should have clarified whether the parental right to have access to fetal sex information without interference also encompasses the parental right to request medical personnel to disclose fetal sex information, or in other words, a positive right to request and acquire such information.

(4) Question of parental right to protect, raise and educate their child

Although the opinion of simple constitutionality considers that the Instant Provision restricts "the parental right to protect, raise and educate one's own child", which is regarded as constitutionally protected in the opinion, the right cannot be the complainant's

constitutionally guaranteed right directly infringed by the Instant Provision.

The Constitutional Court has been articulated in its precedents that 'the parental right to educate their own child' is an inviolable right for all the people in the world regardless of race or nationality and an important fundamental right derived from Article 36 Section 1 of the Constitution which deals with the constitutional guarantee of marriage and family life; Article 10 which protect the right to pursue happiness; and Article 37 Section 1 which stipulates that "freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution" (12-1 KCCR 427, 466, 98Hun-Ka16, April 27, 2000). As such, the parents' right to raise and educate their child deserves constitutional protection as a basic right.

But, we should understand that the basic right to raise and educate one's own child in the aforementioned Constitutional Court precedents is only applicable to a child who had already been born, not extended to an unborn child, that is fetus, and parents should not be regarded as having such a basic right toward their fetus under the Constitution.

Also, as the legislative purpose of the Instant Provision pertains to protection of life of fetus and the subject matter to be regulated by the Instant Provision is the duty of medical personnel not to disclose fetal sex information which seems nothing to do with health status of a fetus, there seems no room for argument that the Instant Provision may restrict a right of parents to 'protect' their own fetus.

(5) Sub-conclusion

As the sex of a fetus is determined by nature without regard to an intention or will of the parents, the possible benefits expected to be achieved by admitting the parental freedom to verify fetal sex in advance before the fetus' birth are merely gratifying the parents' instinctive curiosity to know about the sex of their fetus that is going to be a new family member in the near future and providing a chance to prepare for the life after the fetus' birth in advance. Moreover, as it was not until medical science and technology developed in recent years that an access to fetal sex information became available, such information can be said to be simply a byproduct of such progress in

science and technology. Also, acquisition and possession of such information are not via the State or governmental agencies, but via medical personnel who are private persons who diagnose mothers of fetuses.

As reviewed above, we cannot say that parents inherently have a constitutionally guaranteed right to have access to fetal sex information without interference, and parents' frustration at being impossible to be informed of fetal sex information by medical personnel before the fetus' birth is merely an incidental or unexpected disadvantage, not in violation of the complainant's fundamental right guaranteed by the Constitution.

As there is no possibility for the constitutionally guaranteed basic right of a father of a fetus to be infringed by the Instant Provision, this constitutional complaint in which the complainant assumed an infringement of his basic right should be dismissed for lack of justiciability.

B. Possibility of Instant Provision's violation of the principle against excessive restriction (2005Hun-Ba90 Case)

(1) Legitimacy of legislative purpose and appropriateness of means

The Instant Provision was enacted to hammer out the sex ratio disparity and to protect a fetal right to life by preventing sex selective abortions. According to the minutes of the 137th National Assembly plenary session, the Instant Provision was legislated in order to eradicate and prevent the practice of sex selective abortion based on an assumption that fetal sex determination itself involves high probability of abortion as an act of depriving the fetal right to life, being aware of the serious social problem generated by distorted use of prenatal screening and diagnosis, which was originally developed to detect birth defects such as generic diseases or congenital malformation but currently, in combination with the attitude of son preference, has been misused as a method of determining fetal sex, thereby adversely leading to reckless abortions which finally resulted in severe damage to the dignity of human life and a demographic phenomenon of a seriously distorted sex ratio. As such, there is no

doubt that the legislative purpose of the Instant Provision pertains to the protection of fetal life originated from the idea of respect for human life. Regarding human life including a fetus that has the potential for human life, we should not make a hasty judgment on the basis of law or social science. The State should not be negligent in protecting life unless it is unavoidable.

It is still necessary to protect the life of fetus via the Instant Provision, even in the contemporary Korea. According to the result of the '2006 Birth Statistics' published by the Korea National Statistical Office, the overall sex ratio at birth in Korea was 117.5 in 1986 around which the Instant Provision was enacted and since then, the disparity had kept increasing up to 116.5 in 1990. Since 1997, however, the skewed sex ratios have regained its balance, such as 107.4 in 2005. The trend in statistics actually shows that there still remains the tendency of son preference in today's Korean society and we can infer from the statistics that without the Instant Provision, sex ratios at birth may not even be able to approach to the 'natural' sex ratio of 106. Of course, the tendency of son preference has been continuously diminishing in recent years, but even so, it does not suffice to say that such tendency absolutely disappeared: for example, especially for the sex ratios of third or fourth children, they are far beyond the natural sex ratio of 106, representing 121.8 and 121.6, respectively.

As reviewed above, it is undeniable that there still remains a possibility of sex selective induced abortions precipitated by fetal sex determination and disclosure. Considering the situation, if notification of fetal sex by medical personnel is allowed in any stage of pregnancy or even in the last trimester, the abortions based on reasons of the sex of fetus cannot be frustrated, thereby endangering fetus' life. Therefore, disclosing information on fetal sex should be allowed neither in full scale nor in even a limited situation.

(2) The issue of the least restrictive means

The opinion of the Court considers this case violating the principle of the least restrictive means on the grounds that since abortion is practically impossible in the late stage of pregnancy, allowing

disclosure of fetal sex does not hamper achieving the legislative purpose of the Instant Provision; and the Instant Provision redundantly and excessively imposes restriction on disclosing fetal sex information despite the existence of penal punishment for abortions.

But it is not absolutely sure that there will be no abortion related to fetal sex if pregnancy reaches the late stage. Of course, abortion in the late stage of pregnancy is less probable than that in the earlier stage due to serious concern for the mother's health, but that does not necessarily mean that any abortion in the later stage is absolutely impossible. If a pregnant woman or her family decides to terminate pregnancy for reasons related to fetal sex and proceeds with an abortion at the risk of her life, such an abortion may cost not only the life of the fetus but also that of the mother. In other words, although the probability of carrying out an abortion may diminish as approaching to the expected date of delivery, any abortion conducted in the later stage of pregnancy, when an abortion directly leads to serious threat to human life, is surely far more dangerous than conducted in the earlier stage of pregnancy. Therefore, in order to completely prevent such an abortion in danger of life from conducting, we should not allow a pregnant woman or her family to be informed of the sex of the fetus until the delivery.

Furthermore, relaxing the ban on fetal sex notification in the late stage of pregnancy as in the opinion of Court may encourage sex selective abortions because such relaxation can be abused by both the pregnant woman and her family and the physicians, resulting in the parents being notified even before the late stage of pregnancy: given the private and secret setting between a physician and a pregnant woman or her family in which an information on the sex of fetus is released, it may be almost impossible to objectively verify whether the information is disclosed during the prevented period or not, and therefore, there is a high possibility of secretly advancing the fetal sex notification ahead of the legally allowed period, which might have the same effect as allowing fetal sex notification in full scale. If disclosing fetal sex is allowed in the late stage of pregnancy, or after 28th week of pregnancy, the legislative purpose of the Instant Provision to prevent abortions cannot be achieved at all. Therefore, in order to achieve the legislative purpose of the Instant Provision, the

ban on notifying information on fetal sex must be applied throughout the entire pregnancy.

Also, the existence of the Instant Provision in spite of the penal punishment stipulated in the Criminal Act actually explains the necessity to provide a law that separately regulates the practice of disclosing fetal sex in order to eradiate the problem of sex selective abortions whose nature is totally different from that of general abortions for medical reasons, considering the situation where the penal punishment fails to completely root out abortions, especially sex selective abortions based on the preference for sons which still remain in the society. As such, the Instant Provision regarding ban on notification of fetal sex is an appropriate means to stamp out the sex selective abortions as a legal measure of totally different dimension from the penal punishment by the Criminal Act.

Therefore, the Instant Provision does not violate the principle of the least restrictive means.

(3) Balance between legal interests

As reviewed before, parents' basic rights such as the right to know and the right to pursue happiness are not infringed by the Instant Provision, and the disadvantages the parents would experience are merely practical and incidental, such as being frustrated in fulfilling their curiosity toward the sex of the fetus and preparing for the life after the birth of their fetus. Therefore, in this case, only the occupational freedom of the physician who has been convicted for the violation of the Instant Provision is the fundamental right to be infringed by the Instant Provision. Regarding balance between legal interests, the restriction on the physician's occupational freedom seems to be dwarfed by the public interests to be achieved by the Instant Provision such as protection of fetal life and maintenance of balance in sex ratio.

From a physician's point of view, given the physician's duty to provide pregnant women with appropriate medical treatment and support throughout the entire pregnancy to help them maintain physical and mental health to deliver healthy babies, it is of course within the physician's proper job to inform parents of the sex of their fetus

discovered in the course of medical examination and treatment upon their request. Such a practice of providing information, however, does not seem to constitute the essence of medical practice performed by a physician: it is only incidental to, but not directly included in, the practice of medical examination. Giving such information has nothing to do with improving health conditions of both the mother and the fetus. After all, it only accommodates the pregnant woman or her family by providing such information in advance for practical convenience. As such, the physician's practice of giving information on the sex of fetus, which only serves its purpose as a lubricant for the relationship with the pregnant woman or her family, cannot be allowed without question only because it is included in the physician's job descriptions. Of course, if such practice by a physician does not cause any infringement on other legal interests at all, it should be freely allowed for sure. But, although disclosure of fetal sex itself is not repugnant to social norms or ethics, we cannot deny that the practice of giving information on fetal sex in our society can possibly be used as a preliminary step for sex selective abortions in some cases. Therefore, as long as the foregoing possibility exists, such practice should not be allowed without reservation, given the graveness of legal interest infringed by it.

As a result, the Instant Provision satisfies the element of balance between legal interests as there seems no conspicuous imbalance between the protected public interests and the limited private interests.

(4) Sub-conclusion

In order to protect fetal life by preventing sex selective abortions, disclosure of fetal sex should be banned throughout the entire stages of pregnancy, as expressly stipulated in the Instant Provision.

Therefore, the Instant Provision does not violate the Constitution.

C. Conclusion

Regarding 2004Hun-Ma1010 case, the constitutional complaint should be dismissed on the grounds that the complainant, as a father of a fetus, does not have constitutionally protected basic rights possibly

infringed by the Instant Provision. Regarding 2005Hun-Ba90 case, the Instant Provision should be declared constitutional.

Justices Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan