대리모계약의 효력에 관한 소고 (A study on the effectiveness of Surrogacy Agreement)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 37권 / 1호 / 161 ~ 179페이지
· 저자명 : 한삼인, 김상헌

초록

대리모계약은, 체외수정을 통한 출산대리모의경우 시술 상의 어려움과 비용부담이 크긴 하지만일단 성공하면 불임부부 양쪽의 유전자를 가진 아이를 얻을 수 있다는 매력으로 동양사회에서도 대리모계약의 체결은 앞으로 더욱 많아질 추세이고,우리 사회에서도 사회적 관심이 높아지고 있는 관계로 이에 관한 다양한 논의가 있었으나, 과연 그러한 논의가 새로운 법리의 제시라는 미명 하에우리 사회의 선량한 풍속 기타 사회 질서와 동 떨어지는 것은 아닌가라는 의문을 가지지 않을 수없다. 또한 대리모계약 체결 후 대리모가 긴 임신기간 동안 형성된 아이에 대한 애정에 기인하여자의 인도를 거부하는 경우까지 있음을 살핀다면,과연 계약법적인 문제로만 접근할 수 있는가에 관한 검토 또한 필요하다고 할 것이므로, 이러한 관점에 여성을 단순한 출산도구로 사용하는지 여부에 관한 윤리적 문제 및 여성 인권적 측면을 더하여 그 유효성 여부를 고찰한다.

영어초록

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.

참고자료

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