원치 않은 임신에 대한 아이의 부

다국어 초록 (Multilingual Abstract)

“Wrongful conception” is a medical malpractice claim in which the plaintiff is the parent of a normal, healthy infant whose conception was unplanned and unwanted. Medical malpractice in wrongful conception can be the result of a failure to provide informed consent to a patient, failure to properly perform a surgery, or a physician's negligent handling of a patient's problems. In the concrete, wrongful conception cases fall into two categories; those involving pre-conception negligence, such as a failed contraceptive, sterilization or failing of the controlling of embryo-number on the IVF, and those involving post-conception negligence, such as a failure to diagnose a pregnancy or to perform an abortion procedure. In addition, Medical malpractice can be the result of a failure to provide informed consent to a patient. When bad results occur by medical malpractice or failure to provide informed consent to a patient, the range of recovery of damages is decided by a traditional civil liability law. However the calculation of damages for wrongful conception is not easy because the high value of life is included in that case. So many courts opinions in foreign country and Seoul High Court decision in 1996 allow damages for the pregnancy, birthing process and sterilization costs, but refuses to allow damages for child rearing expenses. As to the range of recovery of damages for wrongful conception, one approach says that to allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff will have in the rearing and educating of the plaintiff's baby. To allow such damages would be against the dignity of the baby based on article 10 of the Constitution. However another approach says that damages are recoverable for all expenses related to child birth as well as for child rearing costs. Because the damages that the parents should bear a burden to the tort damage done is not a baby itself but child rearing costs. In other words, although the baby is healthy or not, economic burden of the parents can not be disregard. And denial of compensation for costs of child rearing may invalidate the role of liability law, grant the physician with a exemption certificate of liability. As a result, the medical field of procreation can be easily isolated from a liability of reparation. Therefore, on the liability law like the other medical malpractice action, parents who became pregnant or gave a birth by physician, wrongfully performed sterilization operation, etc. should be compensated for all damages relevant to unplanned and unwanted conception or birth as well as costs of child rearing.

목차 (Table of Contents)

• I. 서설
• II. 원치 않은 임신의 개념
• 1. 원치 않은 임신용어의 유래
• 2. 원치 않은 임신의 개념
• 3. 원치 않은 아이의 다른 유형과의 구별
• III. 원치 않은 임신소송의 원인ㆍ배경 및 모자보건법상 제한
• 1. 원치 않은 임신소송의 원인
• 2. 원치 않은 임신소송의 배경
• 3. 원치 않은 임신과 모자보건법상의 제한
• IV. 원치 않은 임신에 대한 손해배상의 범위
• 1. 서설
• 2. 아이 자체의 손해성
• 3. 부양비의 손해성 및 배상범위
• V. 결론
• 참고문헌
• ABSTRACT