대리모 출생아의 친자관계- 2018. 5. 18. 선고 서울가정법원 2018브15 결정을 중심으로 -

The legal status of child born through surrogacy is an immediate task which Korea face nowadays. On May 18, 2018, the Seoul Family Court ruled, for the first time, on the issue of the surrogate mother's contract and the standards of deciding mother through our civil law, in the case of the child born in the United States. According to the decision, in our civil law, the ‘fact of giving birth’, which is the standard of determining mother, should be applied to the issue of surrogate mother's birth, and when the birth report is filed under the Family Relations Registration Act, the child's birth certificate must be proved by the birth certificate attached to the birth report. In consideration of the legislative purpose of the Bioethics Act, the gestational surrogacy is not allowed in the interpretation of our laws, and such surrogate contract violates Article 103 of the Civil Code contrary to good customs and social order. I generally agree and welcome the conclusions and logic of this ruling which demands of adoption of intended mother for establishing legal maternity with the child through surrogacy. However, in view of the best interest of the child, and considering that the surrogate's birth is not the area of ​​the parental assumption because the spouse did not give birth to the child during marriage, the paternity should be made by recognition of the intended father as well as genetic father. The fact that the child is born through surrogate should not disadvantage or delay the registration of a child. In addition, it is reasonable to establish a legal maternity through the adoption of a ‘complete adoption’ system in the existing civil law, rather than introducing a new and separate lawsuit for deciding “legal mother.” In this paper, I review the surrogate mother system as a whole and consider the filiation with surrogate mothers abroad in consideration of the global trend of surrogate journey in surrogate-friendly countries.