난자의 연구 이용 관련 우리나라 법원 판결에 대한 고찰: 난자매매 및 난자채취손해배상청구 관련 판결을 중심으로

This article introduces the contents of the written judgments according to the korean court’s decision related to using the women’s oocyte for the research as well as analyzes both the significance of these judgments and the limitation of grounds for the judge’s argument in these written judgments from the perspective of research ethics and bioethics. First, the judges of the Seoul High Court and the Supreme Court convicted the defendants because they received the oocytes for conducting somatic cell cloning embryo research from the infertile women who undergo the in vitro fertilization and embryo transfer as the medical treatment to pregnant. Since 2005, Buying and selling of women’s oocyte has been forbidden by the Bioethics and Safety Act. But the defendants received the eggs subject to the reduction of medical expenses. So, the Courts judged that providing the passive interests such as debt relief can correspond to offering the property interests considering the legislative intent of this act and the statements in the prohibitive provision. This decision is very significant because it is the first decision to recognize the Illegality of buying and selling of women’s oocyte pointing out the importance of the respect to the human being’s dignity and values as well as the guarantee of the voluntary consent based on the self-determination. But, there is the something lacking because the Courts did not consider that the controlled ovarian hyperstimulation and the surgical operation to collect women’s oocytes can have many negative effects to the women’s health, especially reproductive health, the infertile women who undergo the in vitro fertilization and embryo transfer must be protected specially as the vulnerable persons. Also, the Courts used the expressions denouncing the women in the written judgments and can’t treat the buying and selling of women’s oocyte from the healthy women not related to the infertility giving the direct interests such as cash. The next thing, the judges of the Seoul Central District Court declared the verdict of acquittal to the compensation claim. The plaintiffs argued that they have to receive compensation for psychiatric harm because they donated their oocytes due to the fraud and their right to self-determination was invaded. They insisted that they did not receive the sufficient information and explanation about the purpose and present conditions of the research as well as the foreseeable risk, especially side effects related to the controlled ovarian hyperstimulation and the surgical operation to collect their oocytes. But the Courts judged that there is any reason not to provide the sufficient information and explanation because they received the guidance document from the researcher and the researcher convey orally the foreseeable risk including the possibility of the death, so the plaintiffs’ right to self-determination was not invaded and the psychiatric harm did not happen. This decision is very significant because it is related to the suit by the plaintiffs who are the women donated their oocytes without any reward and the causes of the suit are not only the violation of obtaining the informed consent after the providing the sufficient information and explanation about the research but also the violation of protecting the research participants against the research risk as the principles and the core of the research ethics and bioethics. But, there is the something lacking because the Courts did not recognize that the information and explanation about the research were provided insufficiently and the unrealistic improper information was offered to the plaintiffs as the research participants. Also, the Courts overlooked the researcher’s duty to check that the research participants understood the research well, regarded the fact that any serious side effect did not happened as the reason that the insufficient of the information and explanation about the research can’t be admitted, and did not review the role and responsibility of Institutional Review Board.