Law school mothers left barred from the bar by pregnancy — and Korea's top court is split

Promulgated in 2011, Korea’s National Bar Examination Act allows law school graduates to sit for the bar exam only five times within five years of graduation, with a sole exception for individuals performing mandatory military service. The provision, originally intended to stop perpetual test-takers, has come under fire for prematurely strangling the legal careers of many law school graduates who could not pass the bar within the allotted time for various reasons, including pregnancy, illness and economic hardship. In this series, we’ll examine cases where the National Bar Examination Act’s “five strikes-and-out” rule has forced would-be lawyers to abandon their dreams of a legal career and analyze why it’s proven so hard to change the proviso at the heart of the problem.

— Ed.

Pregnancy cost them their shot at becoming lawyers. Now Korea's Constitutional Court says the law that allowed it is probably unconstitutional — but not enough to change it.

Under current law, law school graduates have five attempts at the bar exam within five years of graduation. Military service is the only recognized exception to this limit. Pregnancy and childbirth are not.

Last month, five of the court's nine justices found that the failure to include pregnancy and childbirth as exceptions was incompatible with the Constitution — a majority, but one short of the six votes required to strike down a law. The law, therefore, remains in force.

The ruling has put a spotlight on the women it has already failed. Some gave birth days before a scheduled exam and sat for it anyway. Others watched their five chances disappear across two pregnancies. A few, facing a sick child or a difficult recovery, burned through all their attempts and are now permanently barred from the profession.

Yoo Si-nae, aged 47, graduated from Yonsei University's nursing program and worked in an intensive care unit at a university hospital before entering law school in 2010. She gave birth to her second child while still in school, and to her third during exam preparation. She said she studied until the day before her third child was born while caring for her children, but her plans unraveled when her youngest was diagnosed with a rare disease and enrolled in a clinical trial in the United States. She sat for all five exam attempts regardless, but failed each time.

"The school suggested I take a leave of absence, but my parents were looking after the children, so I thought that as long as I had time to study, I could pass within five tries," Yoo said. "People say it was my choice to go to law school, knowing the five-attempt rule. But I had no way of knowing that my third child's rare disease would come into my life the way it did."

Kim Nu-ri, aged 40, lost three of her five chances when she became pregnant with and gave birth to two children between 2017 and 2019. "When my first child turned one, and I was trying to get back to studying, I found out I was pregnant with my second," she said. "When I found out, instead of being happy, I burst into tears — because given the due date, I knew I'd have to skip the next exam."

Twenty-nine days after delivering her second child in December 2018, she was due to sit for the bar exam. She skipped the 2019 sitting entirely.

"I couldn't physically take a five-day exam without having had time to recover from childbirth," Kim said. "If I had been able to defer, I would have gratefully accepted that — instead, I just felt the system was cruel."

Kim filed a constitutional complaint, arguing that the bar exam law violated Article 36, Paragraph 1 of the Constitution, which guarantees the right to marry and maintain family life, and that the law infringed on her maternal rights and her children's right to care.

Court divided, law unchanged

The Constitutional Court ruled on May 21 on Article 7, Paragraph 2 of the Bar Exam Act — the provision governing exceptions to the five-attempts-in-five-years rule — and upheld the law with four votes for and five against. Military service is currently the only recognized exception under that provision.

"Given the state's duty to protect maternity, the exception provision violates the principle of proportionality," the five justices who voted against the law wrote in their opinion. "The law infringes on the freedom to choose an occupation for exam candidates who were unable to properly sit the bar exam due to pregnancy or childbirth. The provision stands in clear contrast to individual statutes such as the Labor Standards Act and the Act on Equal Employment and Support for Work-Family Reconciliation, which contain various maternal protection measures."

They also noted that the average age at which women in Korea give birth to their first child is 33.08. "Most bar exam candidates are at a stage in their life cycle when they are planning or going through pregnancy and childbirth while preparing for and sitting the exam.

"Subjecting them to extreme stress during this period causes significant psychological harm, and the extended exam preparation period and five-day exam schedule may pose serious risks to fetal health."

They recommended that, rather than striking down the exception provision entirely, which would create a legal gap for those granted exemptions for military service, lawmakers should instead amend the law to add pregnancy and childbirth as recognized exceptions.

In their dissenting opinion, the other four justices said it was "difficult to legislate uniformly on what grounds, beyond military service, should qualify for an exception to the exam attempt limit, or for how long." They added, "The more exceptions are recognized, the greater the risk of fairness concerns around exam opportunities and pass rates, which could undermine public confidence in the examination system."

BY KIM BO-REUM, CHOI SEO-IN, JO SU-BIN   [[email protected]]