대리모에 관한 입법론적 연구

김상찬 ( Sang Chan Kim ) 제주대학교 법과정책연구소 2013 法과 政策 Vol.19 No.1

최근 우리나라에서도 대리모에 의한 출산이 빈번하게 이루어지고 있고, 심지어 상업적 대리모 출산이 출현하고 있으며, 이로 인한 분쟁도 끊이지 않고 있다. 대리모출산은 불임부부에게는 자녀를 가질 수 있는 희망이지만, 이를 규율하는 법률이 아직 제정되지 않았기 때문에, 대리모계약이나 대리모출산이 음성적으로 이루어질 수밖에 없고, 이로 인한 폐해가 날로 늘어가고 있어 더 이상 방치할 수 없는 시점에 이르고 있다. 대리모와 관련하여 세계 각국은 법률을 제정하거나 판례의 축적을 통하여 이를 해결하고 있으며, 이에 관한 갈등이나 분쟁을 해결하고 있는데 반하여, 우리나라에서는 아직 이를 규제하는 법률이 제정되지 않았기 때문에 학설과 민법의 해석에 의존할 수밖에 없고, 이로 인하여 대리모계약이나 대리출산과 관련하여 일어나는 분쟁을 해결하는데 많은 어려움이 있다. 이 논문에서는 대리모와 관련하여 일어나는 분쟁의 유형과 법적 규율의 필요성을 살펴본 후, 이에 관한 주요국가의 입법례를 분석하고, 마지막으로 우리나라의 대리모에 관한 입법론을 제시하고 있다. 이 논문에서 제시하는 입법론의 내용으로서, 대리모를 규율하는 특별법을 제정하고, 그 안에 대리모계약의 허용여부와 범위, 대리모계약의 당사자의 자격, 대리모계약의 검증 및 대리모시술의 승인, 대리모계약 불이행의 효과, 대리모에 의한 출생아의 법적 지위, 국제사법적 문제를 고려한 규정을 둘 것을 제안하고 있고 마지막으로 입법방식을 제시하고 있다. These days, IVF surrogacy takes place from time to time in the country, leading even to emergence of IVF surrogacy for commercial purposes and consequent continuously-increasing disputes about it. While IVF surrogacy may provide infertile couples with hope of having children, laws regulating it have not been made in the country, and surrogacy agreement or IVF surrogacy is forced to take place covertly, resulting in increase of its harms and adverse effects to the critical point which needs some counter measures. In connection with surrogate mothers, each country across the world makes laws or accumulates precedents to resolve this problem as well as conflicts and disputes arising from it. On the other hand, regulatory laws have not been made in the country and inevitably involved people have no other way but rely on interpretation of theories and civil law, which causes much difficulties in solving disputes arising from surrogacy agreement or IVF surrogacy. This paper firstly examines patterns of disputes related with surrogate mothers and necessity for legal regulation, and conducts analysis of relevant legislations of major countries, and finally proposes details of legislation for surrogate mothers. For it, this paper suggests legislation of a special law to regulate surrogate mothers, which includes allowance and scope of surrogacy agreement, qualification for surrogacy agreement, verification of surrogacy agreement and approval of operations for surrogate mothers, effects of non-compliance of surrogacy agreement, legal status of babies borne by surrogate mothers and consideration of private international laws. Lastly, this paper proposes methods of legislation.

대리모계약에 관한 연구

서종희(Jong Hee seo) 한국가족법학회 2009 가족법연구 Vol.23 No.3

It shows that the development of Biotechnology raise new issues of application and interpretation of family law One of the issues is surrogacy agreement That is to say, the proliferation of new productive technology such as in-vitro fertilization makes it available for infertile couples to make the gestational surrogacy agreement with the prospective surrogate mother So in Korea, it is reported that the number of instances concerned with this agreement is now increasing But there is no legislation in Korea with regard to this agreement, whether it is valid or invalid It indicates that there are limitations on solving these problems through current statutes It means that solving these problems leaves theory and a judicial precedent According to traditional opinion, the argument that surrogacy agreement is not valid for the reason that it violates Article 103(Public Policy) of Civil Law However the concept of 'public order and standards of decency' is not fixed but changeable Thus, whether surrogacy agreement is valid or not invalid must acknowledge according to the contents of the agreement made by the concerned parties In order to prevent legal disputes over the decision of mother child relationship in case of childbirth through gestational surrogacy, it is necessary to provide by law Therefore we must refer to international perspectives on the foreign legislations in order to provide with some guideline for Korean legislation regulating the gestational surrogacy agreement Through international perspectives, we must establish a law for the effect of this agreement(i e the status of the child resulting from this agreement, the legitimate mother, the possibility of termination, etc) and the requirement for validating the surrogacy agreement(i e the qualification of intended parents and the surrogate mother, the form of this agreement, a reward for surrogacy agreement, etc) Denying surrogacy agreement can be another way to concubines in secret Besides, though surrogacy agreement is forbidden by law, it will be an unrealistic legislation Put it in a nutshell, we noted that attaining the best interest of the child resulting from surrogacy should be the goal for Korean legislation

대리모를 통해 출생한 아동의 출생등록 문제에 관한 헌법적 고찰

성관정 고려대학교 법학연구원 2023 고려법학 Vol.- No.110

This article originated from an attempt to examine the issue of birth registration of children born by surrogate mothers from the perspective of constitutional law. As a new form of childbirth made possible by the development of assisted reproductive technology, the issue of surrogate motherhood was examined, focusing on the issue of birth registration of children born through surrogate motherhood. First, this paper tried to outline the issue of surrogacy by setting the scope of the concept of surrogacy to be covered, examining the types of surrogacy, whether surrogacy contracts are valid or not, and foreign legislative examples on whether surrogacy contracts are permitted. At the same time, through an overview of birth registration, the meaning of birth registration for children was also examined. Next, 2014. 6. 26. Mennesson v. France, the judgment of the European Court of Human Rights, which approached the issue of birth registration of children born through surrogate motherhood, from the perspective of the basic rights of the requesting parents and children, was reviewed. In the case of the ECHR case, regardless of the validity or invalidity of the surrogate mother contract, it focused on the issue of birth registration of children born through surrogate mothers, and it served as a major milestone in approaching related issues in that it paid attention to it from the perspective of fundamental rights. Accordingly, based on that discussion, the issue of birth registration of children in Korea when giving birth to a surrogate mother was examined from a constitutional level.

대리모계약의 효력에 관한 소고

한삼인 ( Han Sam-in ),김상헌 ( Kim Sang-hun ) 한국외국어대학교 법학연구소 2013 외법논집 Vol.37 No.1

As the contemporary society is going under rapid transition in line with the development of science technology, legal issues are becoming more diverse and complex, indicating that the current legal application will not be sufficient to bring about resolution apt to the current world. Assessment on a legal issue not only requires existing legal principles but also new principles that are based on the understanding and insight about the fundamental issues bearing on social phenomenons. Based on such rational standard for resolutions, changes in laws and precedents in regard to changing one’s gender after sex change, keeping a child’s family name upon his or her parent’s remarriage and organ transplants from brain-dead patients. Such changes indicates the need from discussions about jus sanguinis and other basic principles, requiring various theories thereto. There is no denying that a principle that could aptly solve issues in line with the changes in the society is required. However, as for the issue of hired-surrogates, such an issue is at odds with the good customs and other social orders under the pretext of providing new legal principles. In particular, taking into account the possibility the surrogates themselves might refuse to hand over the new-born child due to the emotional attachment formed in the course of pregnancy, the review on whether such an issue can be handled from legal contract point of view is also required. Hired-surrogates using artificial fertilization have the advantage of adjusting women’s birth decisions and period and thus contributed to improving opportunities for women themselves to commit themselves into working. However, hired surrogates under the capitalism also wreaked threats to dignity of motherhood and it is still undecided who should divide the welfare of new-born children. In particular, all of the surrounding phenomenons are against the good customs and other social orders and thus there are limits to applying the discussions on the surrogates in the western world. A good example would be the fact that Japan, also a nation of Asian Culture, has not yet created legal provisions which recognizes hired-surrogates. Therefore, in principle such hired-surrogates should be deemed invalid, however, from a legal policy point of view, a relevant provisions must be established that recognizes hired-surrogates as adoption not as a consequence of parental decision from a limited legal point of view, as long as those contracts are not of commercial and are for only those parents who can not have child. As foreign nations recognizes unilateral cancellation of the contract upon surrogate’s decision to not deliver one’s new born infant as a prerequisite of the contract, such similar conditions must be set forth. In conclusion, based on the principle of family law which is in support of birth-orientation, deeming surrogates as mothers complies with the women’s right and in order to recognize the cancellation of the contract, the contract should take the form of adoptions and the welfare of the child can be protected by separating legal bindings with his or her original parents.

부록 : 연세대학교 대학원 법학박사학위논문초록 ; 보조생식에 관한 민법상의 문제점

맹광호 ( Kwang Ho Maeng ) 연세대학교 법학연구원 2005 法學硏究 Vol.15 No.1