국내 비혼단독출산의 법ㆍ제도적 고찰: 보조생식술을 통해 태어날 출생아의 권리 보호를 중심으로

Abstract

In 2022, a complaint was filed to the National Human Rights Commission of South Korea alleging that the Korean Society of Obstetricians and Gynecologists’ Ethical Guidelines for Assisted Reproductive Technology discriminated against unmarried women. The essence of the complaint is that despite the lack of government policies or laws prohibiting women from giving birth with the help of donated gametes outside of marriage (referred to as “single mothers assisted by sperm donation”), the ethical guidelines established by the Korean Society of Obstetrics and Gynecology (KSOG) limit the number of women who may undergo this procedure to those who are married or live in a common-law relationship, thereby discriminating against women without a spouse. In response to the complaint, the National Human Rights Commission recommended the revision of the KSOG’s ethical guidelines for assisted reproductive technologies, which restrict in vitro procedures for unmarried women; however, the Korean Association of Obstetricians and Gynecologists stated that it would maintain these ethical guidelines as they are. The association explained that the use of a third party’s fertility to give birth through assisted reproduction is a serious issue that needs to be discussed, including the protection of the rights of the sperm donor and the child born; therefore, social consensus and revision of relevant laws should be prioritized. What is noteworthy about this position statement is that it presents ‘protecting the rights of sperm donors and their offspring’ as the main issue to consider in terms of the possibility to allow assisted reproduction using a third party’s fertility. However, the reverse question is whether it is sufficient to limit the condition of a recipient to ‘a marital relationship including common-law marriage’ in order to ‘protect the rights of sperm donors and their offspring’. Based on these issues, this paper concludes through a critical review of the laws and regulations related to assisted reproductive technologies in Korea that it is necessary to examine the qualifications of assisted reproductive technology recipients in terms of protecting the rights of children born through such technologies instead of focusing on marital status. This study examines the Human Fertilization and Embryology Act of the United Kingdom, the French Law on Bioethics, and the Danish Act on Assisted Reproduction, among other overseas countries, which allow non-marital births through assisted reproduction. The conclusion of the present research is that it is possible to recognize the diversity of personal lives in Korea and ensure the right of women to self-determination. This study argues that non-marital childbearing should be recognized as another possibility to build a family.