This screenshot from a YouTube video shows a woman who recently underwent an abortion procedure at 36 weeks. Legal and ethical questions about abortion have been raised amid a police investigation of the woman and her doctor. Screenshot from YouTube

How late is too late to get an abortion? Could terminating a pregnancy at nine months be considered an abortion?

These questions have been under intense scrutiny in Korea after a woman in her 20s was recently found by police to have undergone a procedure at a clinic to end her pregnancy at 36 weeks.

After confirming the basic facts of the case, which first became public through a YouTube video of the woman in question, the police have named both her and the physician as criminal suspects and have launched an investigation.

However, following a 2019 Constitutional Court ruling that deemed the abortion ban unconstitutional, could they still be convicted for performing what was intended as an abortion?

Medical and legal experts contacted by The Korea Times said the doctor could be found guilty of murder ― but only if police find enough evidence showing that fetal termination was completed outside the woman's body.

They said an abortion at such a late stage may have been performed with a labor induction method, which can be legally defined as a live birth and, therefore, a "murder after birth."

This was the case in an incident that occurred in March 2019. A doctor was indicted on charges of killing a 34-week-old after putting the live baby in a bucket of water following an abortion procedure. He was eventually sentenced to three years and six months in prison.

"So how the abortion was conducted (and finished) would be the bone of contention. In the 2019 case, witnesses' accounts that they heard the baby crying were important evidence for proving the murder charge," lawyer Ha Hee-bong said.

The details of this year's case are still unclear, including whether the same method was used for the procedure and, if so, whether the fetus came out alive.

What could further complicate the case is the possibility that the physician might have used medications to induce fetal demise deliberately inside the woman's body so as to avoid any legal troubles, experts said.

But lawyers said the woman is not likely to be convicted as in the 2019 case.

If the woman was under anesthesia during the procedure, it would be difficult to prove that she was willing or consented to how exactly the operation would be conducted, they said.

Abortion rights activists hold a rally in Seoul in this file photo from Nov. 15, 2020. Newsis

Following the police announcement about the investigation, the Korean Medical Association condemned the doctor in question, saying the suspect would face disciplinary action.

"A 36-week-old fetus can live (independently). Aborting it would be tantamount to an act of murder," the organization said in a statement. "We will respond strongly to the unethical behavior of the doctor who is responsible for making the utmost effort to protect the life and safety of patients."

Lee Hyun-gon, a lawyer who formerly served as a judge, said politicians should start working on legislation after leaving abortion issues in a legal gray area for more than five years.

"There should be a new law. We see a problem like this because of the legal void," he said.

All previous legislative efforts to address abortion have so far failed due to the sensitive and polarizing nature of the issue. How late a woman should be allowed to get an abortion is one of the topics hindering progress.

Officials said three government departments are now drafting a new abortion bill, with the aim of introducing it to the National Assembly by the end of this year.