「위기임신보호출산법」상의 보호출산제 규정에 대한 비판적 검토 –독일 「임신갈등법」상의 신뢰출산제에 대한 규정과의 비교법적 검토를 중심으로-

This study focuses on comparing Korea's Crisis Pregnancy Protection and Childbirth Act with Germany's Pregnancy Conflict Act to determine whether the upcoming Crisis Pregnancy Protection and Childbirth Act can be implemented in accordance with its intent. Through this comparative legal analysis, this study aims to suggest ways to improve Korea's protective maternity system and contribute to finding practical legal and social support measures. To this end, comparative legal implications are presented, focusing on the right to know of the birth child, the internalization of counseling services, various support policies, the availability and duration of trusted or protected birth after childbirth, and the violation of minors' right to self-determination. Korea's protected childbirth system allows women to give birth anonymously at designated medical facilities and give up custody of their children without registering them under the Family Relations Registration Act. In contrast, Germany's trust birth system allows pregnant women to give birth under a pseudonym without revealing their personal information, and the child's biological mother can be identified through the birth certificate when the child reaches the age of 16. This Artikel draws the following comparative legal implications for the two system. First, in terms of ensuring the rights of the child, Korea's "Crisis Pregnancy Protection and Childbirth Act" requires the consent of a legal representative for minors to request disclosure of a birth certificate, and the principle of non-disclosure of personal information about the biological mother and father unless the mother or father consents. In other words, the reasons for non-disclosure are very narrow, and there is no provision for appeal procedures such as court review procedures for non-disclosure, so it seems very unlikely that a child can request disclosure of a birth certificate in practice. On the other hand, Germany's trust birth system gives children the right to access their birth certificates when they turn 16, and if the birth mother objects to the child's access to the birth certificate, the court can make a decision, allowing the court to weigh the interests of the birth mother and the child's right to know. We need institutional mechanisms to ensure that the child's right to know is more practically guaranteed. Second, regarding the existence of internalized counseling services, Korea's "Crisis Pregnancy Protection and Childbirth Act" only provides piecemeal social security benefits and support to pregnant women in crisis, and does not have a systematic pregnancy conflict counseling system. In contrast, Germany's Trusted Childbirth System provides a step-by-step counseling system, including full counseling for pregnancy conflict situations and abortion support. In particular, the German Pregnancy Conflict Act explicitly states that the main goal of counseling is to provide support to pregnant women so that they can have a medically assisted delivery and live a life with their child. On the other hand, our counseling regulations are piecemeal and lack sufficient precautionary measures. This shows that Korea's counseling services need to be improved. Third, in terms of support systems, Korea's Crisis Pregnancy Protection and Childbirth Act provides prenatal and postnatal protection and support for pregnant women in crisis, and stipulates that the state and local governments can support prenatal check-ups and childbirth expenses. However, it is limited to financial support before and after childbirth, and such support must be "within the scope of the budget," which implies that it may not be possible to provide actual support. In contrast, in Germany, pregnant women are fully covered for pregnancy and childbirth through public insurance, and women who choose to have a trusted birth receive the same medical and social support as other pregnant women. Practical support measures need to be put in place. Fourth, regarding the restrictions on whether and for how long a woman can have a trusted or protected birth after giving birth, Germany's trusted birth system allows trusted birth procedures to be carried out even after the birth of a child, and requires birth registration within one week of the birth, thus harmonizing the registration and protection of the child through prompt procedures. This reflects the intention of the system to protect children's rights by quickly securing their legal status and protection after birth. In our case, it is necessary to shorten the one-month period, which could be abused as an alternative route to adoption. Fifth, regarding the violation of minors' right to self-determination, our Crisis Pregnancy Protection Act requires the consent of a guardian to apply for a protected birth, which increases the likelihood of out-of-hospital births and violates the right to self-determination in the case of minors who have severed ties with their parents. Germany, on the other hand, allows minors to apply for trust births on their own, and parents can only access information with the minor's consent, ensuring their right to self-determination. This suggests that Korean law needs to be improved.