우리나라에서도 사망한 남편과 사후수정자 사이에 친자관계를 인정할 수 있는가? - 서울가정법원 2015. 7. 3. 선고 2015드단21748 판결을 중심으로 -

Korea has artificial insemination universalized as a solution in case a married couple can’t have sexual intercourse from medical causes such as sexual dysfunction or a female spouse fails to get pregnant even through natural sexual intercourse. In case the father dies while sperm is frozen and stored with a view to artificial insemination, extraordinary legal issues arise. That is, people may argue over who decides on the use of the sperm, and in case the father dies and a child is born through artificial insemination through an agreement from the father while he is alive, what becomes of the paternity. In Korea, there have been theoretical discussions but there have been no related court rulings. And the first precedent was established on July 3, 2015, when Seoul Family Court gave its ruling numbered 2015Dedan21748. The ruling from Seoul Family Court is significant in that it is the first one to recognize a deceased male spouse as the legal father of a posthumously conceived child, and it was an opportunity to guess at the court’s opinion on the status of posthumously conceived children. While the specific ruling perceived the issue of paternity as blood relation, it created a consensus that there had to be sufficient discussion of various perspectives related to the recognition of paternity for posthumously conceived children. However, current law continues to have moot questions regarding what kind of legal status is to be granted to posthumously conceived children such as first, if paternity can be acknowledged with the strong intention to be a father that the sperm donor (the deceased husband) who has agreed to posthumous insemination is merely presumed to have; second, if recognition of paternity alone could contribute so much to the well-being of a child that an exception to the principle of simultaneous existence is allowed; and third, given that the legal status of a posthumously conceived child is concerned with the status of a child who is ‘nonetheless’ born, even though the question of generational differentiation may be solved by banning posthumous insemination after an extended period of time has passed, if recognition of paternity should cause decomposition of the notion of generations. Therefore, while I understand how the court that gave the ruling in question acknowledged the paternity by recognizing the particularities of the case and the rights thereby protected, I think that paternity for posthumously conceived children should be interpreted and judged according to current law and that the court should have concluded that it could not yet recognize the deceased male spouse as the legal father of the posthumously deceased child, from various perspectives.