임신중단 규제에 대한 국민적 합의의 필요 - 도구성 극복과 휴머니즘 회복 -

Abstract

This thesis worries that the request of the Constitutional Court of 2019.4.11 to the legislature about the improved legislation to penalize a pregnant for terminating the pregnancy after 22-week gestation period may restrict again the right of self determination of female which is acknowledged barely. Therefore this thesis aims to demonstrate that the punishment by the Criminal Law should not be allowed, that the regulation of the abortion by ‘the Criminal Law-the Mother and Child Health Law’ combination format should be abolished and the regulation should be delegated to the nation through the procedure of the substantial national consensus. This thesis tries to establish the correlation of the criminal abortion instrumentalised by the nation with the necessity of the abolition of the law, by applying the Max Horkheimer''s critic of the instrumental reason which seeks to objectify and progress the instrumentation of the reason through its self-criticizm. In order to do supra, this thesis endeavors to expiscate the things ① which the thought process of ‘females are humanbeings’ is removed in the process of acknowledging ‘the right of the fetal life’ as the basis of the existence of the criminal abortion by the court, ② which females are excluded from ‘the right of the human dignity and value’ and ‘the right to pursue happiness’ in the Constitution because of ①, ③ which the two-way race of ‘the right of fetal life vs. the right of self determination of female’ is the output that is missing out ‘the maternal instinct recongnition sensitivity’, and ④ which the content about the deliberation and determination of a pregnant woman for the fatal life and living after the birth is included among the right of self determination of female by proposing ‘the right of fetal profit determination of the pregnant woman’. At last, this thesis attempts to illuminate the things, even if the criminal abortion has to be abolished for the above mentioned reasons, ① which the female-centerd reason has to take care not to disvalue the fetal life through self-criticism, as Horkheimer demands the constant self-criticism of the reason in his denial philosophy, and ② which this thesis counts on the gender community progressing dialectically through interaction toward the gender equality.