대리모 시술의 의료행위성 여부와 형법적 정당화
The Character of Surrogacy Birth as Medical Practice and Criminal Justification
정도희(성균관대학교)
22권 3호, 321~346쪽
초록
Birth using surrogacy begin with the need of infertile couple. Although the procedure for surrogacy birth has a great effect on the body of surrogacy, the interest of infertile couple and medical team is a top priority in the procedure. So the infringement of the benefit and protection of the law is serious. But it is difficult to reflect the interest of surrogacy. Medical practice is justified by victim's consent. According to the precedent of Supreme Court, surrogacy is medical practice. But the bebefit for surrogacy birth is given to not surrogacy but infertile couple. So surrogacy birth requires enforced consent than general medical practice. In other words, doing general medical practice, the doctor's duty of explanation is emphasized. The consent of a surrogate mother through the doctor's explanation is required. And the victim's self-determination on the basis of the consent is protected. In conclusion, the illegality in surrogacy birth is excluded by the surrogacy's consent and justified. In our society there has been discussed the legislation of surrogacy, but the provision has not yet been introduced. After taking into consideration of the debate, the legislation about surrogacy should be made. Surrogacy should be permitted because it is medical practice, but it should be specified to prohibit commercial surrogacy and to criminalize the act of mediation of commercial surrogacy. We should consider the article 103 of civil law, and commercial surrogacy should be prohibited. If surrogacy is paid for being a surrogacy, the intent of infetile couple is lost. In short, according to cases of surrogacy, surrogacy can be seen as medical practice. However, considering the seriousness of the infringement of legal interests of a surrogate mother, emphasizing on self-determination,the consent of surrogacy should be strengthened in surrogacy birth than that in general medical practice. To justifies the surrogacy birth, the doctor's strengthened explanation and the consent of a surrogate mother should be considered.
Abstract
Birth using surrogacy begin with the need of infertile couple. Although the procedure for surrogacy birth has a great effect on the body of surrogacy, the interest of infertile couple and medical team is a top priority in the procedure. So the infringement of the benefit and protection of the law is serious. But it is difficult to reflect the interest of surrogacy. Medical practice is justified by victim's consent. According to the precedent of Supreme Court, surrogacy is medical practice. But the bebefit for surrogacy birth is given to not surrogacy but infertile couple. So surrogacy birth requires enforced consent than general medical practice. In other words, doing general medical practice, the doctor's duty of explanation is emphasized. The consent of a surrogate mother through the doctor's explanation is required. And the victim's self-determination on the basis of the consent is protected. In conclusion, the illegality in surrogacy birth is excluded by the surrogacy's consent and justified. In our society there has been discussed the legislation of surrogacy, but the provision has not yet been introduced. After taking into consideration of the debate, the legislation about surrogacy should be made. Surrogacy should be permitted because it is medical practice, but it should be specified to prohibit commercial surrogacy and to criminalize the act of mediation of commercial surrogacy. We should consider the article 103 of civil law, and commercial surrogacy should be prohibited. If surrogacy is paid for being a surrogacy, the intent of infetile couple is lost. In short, according to cases of surrogacy, surrogacy can be seen as medical practice. However, considering the seriousness of the infringement of legal interests of a surrogate mother, emphasizing on self-determination,the consent of surrogacy should be strengthened in surrogacy birth than that in general medical practice. To justifies the surrogacy birth, the doctor's strengthened explanation and the consent of a surrogate mother should be considered.
- 발행기관:
- 법학연구원
- 분류:
- 법학