친생자관계의 결정기준에 관한 인권법적 모색 ― 유럽인권협약 체제를 중심으로 ―

Parenthood makes a great influence on development of self-identity and personality. Therefore, the criteria for determining parenthood are very important to both parents and children. Until now, the principle on the determination of parenthood has been similar in appearance. That is,the woman who gives birth to the child is its mother, and whose husband, if any, is its father. However, in recent years, the environment surrounding the parenthood has changed drastically. So it is unable to keep the old world-wide rule untouched. The factor that has made such needs is summarized as follows : First, as to the rule on paternity, the following issues are raised. On the one hand, the development of science and technology has made it possible to determine the genetic paternity. For this situation, it seems almost natural that the opinion emphasizing blood in parentage law is getting stronger. That is, Biology, which for years has played a kind of background role, can now play the exclusive role. On the other hand, due to the increase in divorce and remarriage, it is urgently needed that anyone who plays a role of father in family be recognized legal status as father. Second, the increase in number of children produced by gestational agreement has caused serious problem around maternity which has been relatively less problematic. To address these issues, the White Paper of the Council of Europe, that is the Report on Principles concerning the Establishment and Legal Consequences of Parentage seems very helpful in respect of comparative legal study. As rapid change of environment surrounding the law of parentage is the global trend, we can catch similar shapes in efforts to respond to these changes. The principles on the legal parentage that conforms to the European Convention on Human Rights show the following three points. First, the principles for determining parentage and those for disestablishment of parenthood should be distinguished. When a child is born, it is helpful to determine legal parentage as soon as possible. So rapidity and clarity is very important in this step. Once the legal parentage is established, however, this relation itself needs to be protected. On the one hand, while the child is still minor, disestablishment of parentage is harmful to the children in many cases. So it seems contrary to the best interests of the child in general. On the other hand, although the child already has become an adult, the legal parenthood is to be protected because it results in many important rights and obligations. Second, equal legal treatment of legitimate and illegitimate children should be realized in the law of parentage. It is needless to say that imposing disabilities on the illegitimate child is contrary to the basic concept that legal burdens should bear some relationship to individual responsibility or wrongdoing. In this context,the current rule seems problematic especially regarding the degree of protection of the legal parenthood. To cope with this problem, it is desperately needed to make out the same rule applying to all children without regard to the relation between their parents. Third, even if all forms of assisted reproduction were outlawed in a particular state, its courts would still be called upon to decide on the identity of the lawful parents of a child resulting from those procedures undertaken in less restrictive states.