익명출산제도에 관한 비교법적 고찰- 베이비박스를 둘러싼 논의를 중심으로 -

In Korea, stories of infants abandoned in dumpsters and on doorsteps pull at our heartstrings, draw media attention, and motivate legislators to take action. The news media often publicizes the plight of newborn babies left in unsafe public places. This note considers the current form of and concerns with America’s safe haven laws, French’s L'accouchement anonyme(anonymous birth), and German’s law on anonymous birth(Gesetzes zum Ausbau der Hilfen für Schwangere und zur Regelung der vertraulichen Geburt). The most basic purpose of America’s safe haven laws, French’s L'accouchement anonyme (anonymous birth), and German’s law on anonymous birth is to protect infants from immediate danger. Because these children are not able to protect themselves, they seek to encourage parents to abandon children in safer locations. Thus, the legislative message is clear: we promise not to prosecute you if you promise not to leave your baby where it will likely die. 1. In America, Child welfare agencies and state legislatures began to take action in the late 1990s to find ways to protect both the infant that might otherwise be abandoned and the parent who makes the decision not to keep a newborn. The first so-called “safe haven” law was passed in 1999 in Texas. All 50 states have passed some form of law so that parents or other persons can safely and anonymously relinquish a newborn without the fear of prosecution. The various state laws provide for specific safe haven locations that include hospitals, fire and police stations and churches where a parent or other statutorily defined person can relinquish a newborn of varying age, anywhere from 72 hours old or younger to one year old. The laws also protect the parents’ anonymity and either provide them with an affirmative defense to prosecution or make them immune from prosecution for abandonment. In most laws, the safe haven is also immune from civil and criminal liability for complying with the law in good faith. 2. In French, The consecration of the ‘Mater semper certa rule’ does not put an end under the possibility for the mother to request at the time of giving birth that “the secret of her admission and of her identity be maintained” (art. 326). Hence, her name will note be indicated on the birth certificate, and in consequence, filiation will not be established in relations to her. The impossibility of establishing filiation later on in case the secret would be revealed, is guaranteed since the law of January 8th 1993 by a flat refusal against all actions relating to research of natural maternity(art. 325, art. 341-1 anc.). Meanwhile, to ensure better balance of the interests of those involved, the legislator has intervened through the law of January 22nd 2002. Article L.222-6 of the Social Action and Family Code ends to ensure that a woman who gives birth under X is fully aware of the importance and the judicial consequences of her decision. She is reminded “the importance for each person to know her origins and her history.” In consequence, she is invited to leave “if she agrees to it, information about her health and that of the father, the origins of the child and the circumstances of the birth as well as, in a sealed envelope, her identity.” She is informed that at any time she can leave her identity, in a sealed envelope or complete the information she has provided at the time of birth. The mother is informed as well of the possibility she has at any time to lift the secrecy of her identity. 3. In past, Germany allows women to anonymously abandon infants. The German model differs from that of the United States because the mother places the newborn in a “babyklappe” or “babyflap,” an incubator built into the wall of a building (usually a hospital), which can be opened from the outside and inside. The basis for the German system is that of pragmatism: while “a woman’s right to dignity, autonomy, and privacy” prevail in the balance “against the child’s rights to [know his/her] roots and heritage,” the overriding consideration is preventing illegal abandonment. Thus, in Germany, legal abandonment is not viewed as ‘a matter of the woman’s choice or rights, but ‘a matter of necessity’. By the way, in recent, the so-called “Entwurf eines Gesetzes zum Ausbau der Hilfen für Schwangere und zur Regelung der vertraulichen Geburt” was passed on June 2013(Enforcement Date May, 2014) in German. It is also known as the anonymous birth for Infants Bill. The legislation allows for safe birth and surrender of infants at designated Safe Haven locations. The laws also protect the parents’ anonymity. However, the court may exceptively make a public information of mother to truly protect the best interests of the child. In Korea, child abandonment is not a recent phenomenon; however, public awareness of the problem has grown as a result of increased media attention and new modes of communication. News reports of mothers abandoning their children in garbage dumpsters have made headlines on several occasions. The governmental response will have been to make abandonment legal by enacting law. The goal of such laws is to encourage desperate parents to abandon their children in environments designated safe by nation. The laws also must protect the parents’ anonymity. However, parents’ anonymity may not be protected in the light of the children’s best interest required recognition of their filiation under the European Convention on Human Rights and the constitutional right of a parent to care for(or have control over)one’s children.