보호출산제도 도입을 위한 헌법적 연구

Abstract

In o ur s oci ety, t here a re w omen w ho f ace predicaments and cri ses during pregnancy and childbirth over whether or not to continue their pregnancy and whether or not to provide direct care for their child after birth. This has significant implications for non-registration of infants, infant abandonment and infanticide. After a long struggle, birth notification system was introduced in June 2023 through an amendment to the Act on Registration of Family Relations. The act stipulates that the births of all chi ldren born in hospitals must be notified and that the head of the competent municipality must register the birth of a notified child unless a birth report is made. As the Act on Registration of Family Relations a ppli es t o nationals, it does not apply to non-national children, including unregistered non-nationals. However, the birth notification system has at least made it possible to register the births of all Korean children. In order to comply with the provisions of the Convention on the Rights of the Child which identifies the right to birth registration as a universal human right, measures are needed to ensure that all children are registered. The introduction of the birth notification system and the removal of the special provisions for infant abandonment and infanticide committed by a lineal ascendant to avoid disgrace or for some other extenuating motives have enshrined the respect for life and the right to life of infants in the Criminal Act. On the o ther hand, the b irth noti fi cation system and toughened penalti es may put women facing predicaments during pregnancy and childbirth in a more desperate situation, endangering the lives and physical safety of pregnant women and infants. Therefore it is necessary to introduce a system that provides sufficient information to pregnant women facing predicaments through counseling. The system should also support them when they want to gi ve bi rth but are unable to rai se their children themselves. This is embodied in the bill for Special Act on Anonymous Birth System (보호출산특례법안), whi ch i s an a lternati ve bi ll provi ded by the Ministry of Health and Welfare. It passed the competent Standing Committee of the National Assembly i n September 2023. T he b i ll i s understood t o be m odelled a fter G ermany's Confidential Birth Act. Germany’s Pregnancy Conflict Act is characterized by professional and systematic counseling. It allows counselees to choose between general reproductive counseling, pregnancy termination counseling and confidential birth counseling. If a pregnant woman facing predicaments chooses confidential birth counseling, her anonymity is guaranteed for a certain period of time and birth support i s provided to ensure safe bi rth at a hospi tal; the child is gi ven the right to access his/her birth certificate upon reaching the age of 16; and if the birth mother does not c onsent to the c hi ld’s access, the c ourt m ay o rder a di sclosure after balancing interests of relevant entities. The alternative bill currently pending before the National Assembly differs in key aspects from the German legislation in that - the purpose of the law is more focused on creating conditions for children’s well-bei ng a nd f or chi ldren to l i ve s afely wi th t hei r biologi cal parents than o n ensuring the anonymity of pregnant women facing predicaments and children’s right to know; a new counseling system is established for anonymous birth counseling; children who are born anonymously may request access to their birth certificates at any age; and information save for personal details must be disclosed to a child even if his/her biological parents do not consent. While this may have positive aspects from the perspective of children’s welfare, there are doubts as to whether a pregnant woman facing predicaments would choose this option over the fear that information about her could be disclosed at any time. At the very least, the alternative bi l n eeds revisi on r egardi ng t he p urpose o f the act, t he c ounseli ng s ystem and balancing the child's right to know his/her roots with the right to privacy.