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父의 死後生殖을 통해 태어난 子의 법적 지위에 관한 고찰
오호철(O Ho-Cheol) 한국법학회 2007 법학연구 Vol.28 No.-
최근 우리나라에 부의 사후 인공수정을 통하여 출산한 자에 대한 외국의 입법례와 사례가 소개되었지만 아직까지 우리나라에서는 현실적으로 문제된 경우가 없다. 그러나 외국의 경우에는 비록 부의 사후에 냉동보존된 정자를 이용하여 子가 태어날 수 있는 사후포태를 금지하고 있다고 하더라도 현실적으로 이를 막거나 방지할 수 없다. 현재 우리나라의 경우 인공수정과 관련한 의학적 기술이 상당히 높은 수준임을 감안하면 우리나라에서도 충분히 발생할 수 있는 사실적ㆍ법률적 문제이다. 일본의 경우만 하더라도 사후생식과 관련한 몇 개의 판례가 있다. 따라서 현재 소개된 일본의 몇 개의 판례를 중심으로 우리 민법상 사후생식의 허용 여부 및 부와 사후생식자의 친자법적인 문제에 대해 살펴봄으로써 우리나라에 어떠한 시사점을 주는지 고찰하였다. Remarkable progress of medical technology made in recent years has enabled couples, who were not able to conceive a child through sexual intercourse, to have babies through various ways of artificial reproductive technologies These diverse methods of artificial reproduction can be largely divided into artificial insemination and assisted reproductive technology. Artificial insemination is, again, divided into artificial insemination by husband and artificial insemination by donor while assisted reproductive technology has a method called in vitro fertilization as its one of the most typical method. This artificial reproduction has caused new legal problems. As far as parenthood law is concerned, what had only been brought up for discussion and legislated for in Korean civil law have been cases of children conceived through sexual intercourse. In other words, these regulations established when giving birth after artificial reproduction had not been predicted at all. Therefore, legal matters for children born after artificial reproduction have come to cause various issues including recognition as children born within marriage, inheritance, and : support. It is the prevalent view that children after artificial insemination are recognized as wedlock marriage-children, and no specific legal problems will be raised. On the other hand, if after the death of either of parents, surviving parent gives birth to a child conceived through artificial insemination using the father's sperrnfor the mother's embryo) which have been frozen and restored before the death, a new issue would be generated, that is whether or not the child born after artificial insemination after father's death should be presumed as own child of the father. While in Korea legislation regarding this issue is not prepared and there is no previous case on this matter yet, in Japan several cases recently started appearing. By examining Japanese cases, this study looks into what would be advisable in handling the case when a child is born after artificial reproduction after father's death in Korea.
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정현수(Jeong Hyun-Soo) 성균관대학교 법학연구소 2006 성균관법학 Vol.18 No.1
Currently, assisted reproductive technologies including in vitro fertilization are rapidly developing, but the formation of social consensus or institutionalization regarding this hasn’t been established yet. In Korea, in vitro fertilization, which could be called as a reproductive revolution and the opening of a new reproductive age, was first succeeded in 1985, and since then, a number of the procedures have been conducting with the increasing trend of preservation of frozen sperms, but there are no proper rules to regulate this practice. It has long been practiced the Artificial Insemination by Husband (AIH) generally among sterile spouses who want to have their own children in our nation, but the other artificial insemination techniques are also generally accepted. However, the use of frozen sperms after death, which included in AIH in its form, is considered to be still remained in a dead ground.<BR> In other countries, since the legal questions regarding after death fertilization by using dead husbands’ frozen sperms were raised, the legal status of artificially inseminated babies has been approved through precedents and laws under a certain condition. Recently, a legal action for paternity recognition attracted people’s attention in Japan, which was raised by a person who was born through artificial fertilization by using dead husbands’ frozen sperms. Thus, it is a possible scenario that such legal problems regarding birth after death by frozen sperms could be raised in our country.<BR> As mentioned above, the problems regarding fertilization after death is realistic and legal problems which might happen in Korea someday, this study was attempted to solve the problems in consideration of overall legal problems in aspects of family law including whether fertilization after death is to be allowed or not, for they are possible to be raised in association with artificially inseminated babies who were born through frozen sperms after their father’s death.
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보조생식의료의 법제화를 위한 제언 -자(子)의 법적 지위를 중심으로-
이정현 ( Jung Hyun Lee ) 법조협회 2011 法曹 Vol.60 No.5
The advancement of an assisted reproductive treatment can guarantee reproductive rights to women feeling painful due to sterility, whereas it is a realistic alternative that women who don`t have the womb inherently or excised the womb because of diseases except a tumor, can have children with one`s own genes. However this artificial intervention has caused discussions on the legal status of persons, who were born through a process of external fertilization by using germ cells of the third party or was born through a surrogacy agreement by using the womb of the third party, so it is being risen as a subject of legal·social·ethnic discussions in the whole society. The article examines the legal status of persons born by using germ cells of a non-spouse, persons born by fertilization after one`s death and persons born by a surrogate mother by limiting the target of assisted reproductive technology to a legally-married couple and aims to suggest implications to our country`s legislation through foreign legislation discussions.
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