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- 주제어 : determining parentage (검색결과 5 건)
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양진섭 한국가족법학회 2019 가족법연구 Vol.33 No.3
In recent years, interest in legal parentage has been gradually increasing. One of the reasons is that the parts that were accepted without any problems beforehand are being developed in various aspects with the change of reality of the times. In this paper, we summarize the main contents of legal issues that are particularly important in terms of the determination of parentage. 1. Although not expressly provided for in Article 844 of the Civil Code, only children who are subject to presumption of paternity should be regarded as a child born in wedlock. Domestic practice and many theories have classified ‘a child born within 200 days from the date of marriage’ as a child born in wedlock, but the theory of interpretation that this child is the object of affiliation as a child born out of wedlock is the most natural. 2. With regard to affiliation with the Judicial Permission, there are issues that are not easy to solve in various aspects, such as when they come into effect, their legal meaning, and the scope of their application. 3. On the one hand, there can be no basis for total denial of affiliation of mother under Article 855 (1) of the Civil Code, but on the other hand, if a mother intends to report birth, it is required to attach a birth certificate which is a written proof of childbirth, and if a mother intends to affiliate his/her child, it is not advisable that the mother-child relationship be recognized without such a proof. 4. The trial procedure for the establishment of the mother-child relationship of a child born out of wedlock shall be regarded as possible only by the claim for affiliation against mother under Article 863, 865 of the Civil Code. However, if we admit that the establishment of the mother-child relationship is based on pregnancy and delivery, we can consider improving the system in the direction of accepting a confirmation claim of parentage existence as in current practice. 5. If with regard to a child born out of wedlock who gave birth between a father and a woman other than the wife, a father reports birth as a child born in wedlock between a father and the wife, and then there is given a confirmation judgment of parentage non-existence between the child and the mother, it is said that such a report of birth has become invalid as a result, and therefore, the validity of the affiliation on the birth report cannot be recognized.
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김민규(Kim, Min-Kyou) 한국가족법학회 2012 가족법연구 Vol.26 No.3
This thesis studied whether it is accepted to determine parentage of a known sperm donor, whose child is born by in vitro fertilization(IVF) between an unmarried couple. People have generally taken a position that artificial insemination by donor(AID) between an unmarried couple should acknowledge the assisted conception only for a wife of legal marriage. However, the Breit v. Mason and L. F., a minor case, which is set as a material on this thesis, is the instance of IVF between an unmarried couple. The sperm donor(Breit) and the gestational mother(Mason) have maintained the relationship of cohabitation for quite a long time and they have wanted to have a child. They have faced difficulty in getting a child in sexual intercourse, therefore, they have decided to take a method of IVF. It is the point at the issue in this thesis whether the sperm donor cannot raise a petition to determine parentage on a child born by AID because he is not the legal husband of gestational mother. Thus, the issue on whether the position of “a known sperm donor” is acknowledged as a legal father, whose child is born by AID between de facto marriage or an unmarried couple has been outside from a subject of discussion so far. I got to the conclusion as follows: First of all, it is not any enough evidence to consider differently the assisted conception conducted by an unmarriged couple as IUI(Intra Uterine Insemination) and AID(i.e. AIH: artificial Insemination with husband’s semen) between a married one. Secondly, in the necessary conditions of de facto marriage if intention of marriage is vague, it could be understood that the judicial precedent of Korean Supreme Court can be presumed the intention of marriage from the objective connubiality according to the custome of marriage and bona fide. Thirdly, although it is difficult for unmarried-cohabitee to be accepted as de facto marriage, it cannot deny a blood relationship between AID child and sperm donor only for the reason an unmarried couple are not in the legal marriage. Lastly, excluding the intended father in the decision of guardian ad litem, which lead to an unexpected result to violate the right of self-determination in the current situation that the assisted conception through AID cannot be relinquished, is against the principle of children welfare. It is thought that the suggestions of Breit's case have a significant value of taking account of establishment of legislations or legal policies relevant to the assisted conception.
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Articles : Assisted Reproductive Technology in Japan: Focus on Surrogate Pregnancy
( Nishi Kiyoko ) 아세아여성법학연구소 2013 아세아여성법학 Vol.16 No.-
In Japan, Assisted Reproductive Technology (ART) is widely practiced since 1949. However there is no legislation on pregnancy using ART. This article surveys the current situation of ART in Japan, and examines focusing on two problems: (1) whether surrogate pregnancy (gestational carrier) is acceptable; and (2) the parentage of children born by means of surrogate pregnancy. This article draws two conclusions: (1) surrogate pregnancy may be allowed in the exceptional case; and (2) although the surrogate mother should be the legal mother even when the eggs of the commissioning female are used, a narrow way which changes the commissioning female into a legal (natural) mother should be provided.
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