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이인영 ( In Young Lee ) 연세대학교 법학연구원 의료·과학기술과 법센터 2011 연세 의료·과학기술과 법 Vol.2 No.1
The legal definition of the mother has traditionally carried an unshakeable presumption, namely, that she is the person from whose womb the child came. Traditionally, this presumption of biology, which has formed the definition of motherhood, has been the unquestioned and pervasive rule for determining motherhood. Genetics, gestation, and intent are all potential criteria for establishing motherhood. Those who advocate either genetics or gestation generally attempt to resolve the issue of motherhood within the context of gestation surrogacy, an arrangement in which an intending couple provides an egg and sperm to a surrogate who carries the child to birth. However, those who advocate intent-based parenthood argue for a generic definition of motherhood that applies to all surrogacy cases regardless of whether the surrogate or a donor provides the egg. On the one hand, despite the differences between the genetics standard and the intent standard, courts of many countries favor the intended parents in gestational surrogate motherhood arrangements and reject the contract as a legal document in and of itself. Attempting to account for the possibilities made available by new reproductive technologies, advocates of a third view of motherhood link parental rights with the pre-conception intent to become parents. On the other hand, the significant bond between mother and child, established during pregnancy, is one reason why the investment and contribution of the gestational surrogate is the bonding that occurs between the surrogate and the child she is carrying. Although significant bonding may occur between any two individuals, the combination of biological investment and the resultant bonding weighs heavily in favor of gestation as the determinant of motherhood. The goal of this paper is to examine and evaluate the different ways of determining motherhood surrounding surrogate motherhood. Scientific advances in reproductive technology yield possibilities such as surrogate motherhood that do not fit our traditional legal concepts, culturally rooted as they are in natural reproduction. In most surrogacy cases, the traditional view of motherhood presupposes that a woman who gives birth to a child is conclusively presumed to be the mother with full, uncontested maternal rights to the child. I suggest that a dual standard, namely gestation standard and the intent standard, for determining surrogacy motherhood would consider the best interests standard and that a new system of affiliation proceedings that surrogate mother or intented mother recognized the surrogate baby as her own child, should be introduced.
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