원치 않은 출산소송에 관한 판례평석 －대법원 2002. 6. 25 선고 2001다66321 판결을 중심으로－

Wrongful birth describes a cause of action or claim by parents of a deformed or defective child who allege that negligent advice as to the risk of genetic or birth defects or negligent treatment, or failure to abort a fetus, by the doctor deprived them of the choice of avoiding the child’s conception or of terminating the pregnancy. In these cases, parents of child with disability allege that because the defendant doctor breached the duty owed to the patient, they were denied the opportunity to make an informed decision. This claim lies on the basis that had it not been for the doctor’s negligence, the imperfect child would not have been born. In traditional medical malpractice lawsuits doctor’s negligence is the direct cause in the child’s disability, but in wrongful birth cases his/her negligence are the indirect causes of child birth. After this new type of lawsuit like wrongful birth action had been litigated in the United States in the 1930s many courts in Germany, France, UK including the United States have been recognized to recover to the parents for birth of child with disability. In contrast, in Korea, wrongful birth actions have been brought by parents alleging that the physician’s negligence of their child caused the injury in 1990s in many lower court and since that time these have been big issues legally and socially. While some lower courts have recognized in this new type cause of action, others have rejected it based on the difficulty in determining damages. On the other hand the Supreme Court of Korea has generally indicated negative attitude to the cause of wrongful birth action. However, Korean Supreme Court, for the first time as the highest Court, had decided to recover to parents of children with disabilities for the mental damages excepting for property damages in 2002. After this 2002 Supreme Court decision because there are only one judgment in Seoul Western District Court it can not be said that many wrongful birth actions will be brought sooner or later. But in a long-term perspective it can be said that this new type actions will be gradually increasing in Korea. It was apparent that Korean Courts still had a negative view to the cause of wrongful birth action. But because the Supreme Court’s 2002 decision agreeing to allow the parents of disabled child to recover damages for the mental anguish was said rather progressive, it may seems to be a positive outlook on this issue. Meanwhile many courts of Korea have determined whether it can allow the parents of disabled child to recover damages, basing on Article 14 of Maternal and Child Health Act, allowance standard of abortion. When the abortion of the disabled fetus only can be allowed depending on Article 14 of Maternal and Child Health Act, Courts allowed damages to the parents of children with disabilities. But this Article 14 has been designed to allow abortion because of the health of the parents and this is just standard to judge whether the maintenance of pregnancy is harmful to the health of the mother of fetus. Therefore, it is unreasonable that it should be decided to recover the damages to the parents in wrongful birth action whether or not to admit by the Article 14 of Maternal and Child Health Act. Thus, the court should change their views. So it should be decided to recover the damages to the parents in wrongful birth action because of the doctor’s negligence, the duty violation doctor’s explanation and the health of the fetus itself. In this paper, it was reviewed the Supreme Court’s 2002 decision, investigated about whether or not to admit demage recover in this type of action, and examined the compensation range.