Surrogate Motherhood in Korea; Legislative Theoretical Research

The surrogate birth is actually being performed in many years in Korea, but there is neither direct statute nor regulation addressing it. Since there has not been any decision made on surrogacy by the Supreme Court, the validity of the surrogacy contract made between both parties and the issues of parental rights kept rising controversial. Overall debates on surrogacy contract, the scholars in Family Law tend to assert the invalidity of the surrogate birth contract, while the scholars in Contract Law have a bias towards the validity of its contract. Approaching on the issue of surrogacy it is possible to recognize its validity of surrogacy contract with certain conditions as an eclectic measure. Considering the level of surrogacy practice that has been already performed in the past, it is highly needed for legalizing its contract. It is desirable to admit surrogacy exceptionally for protecting the right of procreating if it is only choice overcoming infertility. The followings are the factors that need to be considered for devising legislation on surrogacy. Surrogacy arrangement must be used only for overcoming infertility as a last resort option. The genetic surrogacy must be excluded as an option in legal surrogacy systems. There must be no benefits in return involved in surrogacy arrangement. Prior to use of legal surrogate system, a thorough verification needs to be required by court. The government requires controlling the intermediary institutions for the surrogacy system through legitimate registration which may restrain illegal surrogate birth. The criteria for determining the status of legal parent‐child relationship must be established for the surrogacy.