여호와의 증인 신자의 수혈거부와 자기결정권의 한계

Abstract

On June 26th, 2014, the Supreme Court of Korea has acknowledged the autonomy right with relation to refusal of blood transfusion of a Jehova’s witness. I have intended to clarify the legal theory and the limits of such autonomy rights. As decisions related to this topic are highly limited in Korea, I have also taken the cases in the US-precedents in consideration. The results of this research are to be summarized as follows:First, the Supreme Court of Korea has also acknowledged the duty of the state to protect the life right of individuals, i.e. the duty of physicians to treat the patients, as the preferential duty. Specific circumstances such as religious belief of patients can also be taken into consideration with regard to the methods of treatment only when they can be evaluated as of the same value. This led to the conclusion that the respect for the autonomy of the patients falls within the discretion of the physicians, who should make decisions under comprehensive consideration of all of the related matters. Second, the US-precedents tend, according to my analysis, to put emphasis on the autonomy of the patients. But it has been developed the doctrine of parens patriae and controlled the right of the parents to consent to the treatments with relation to minors. In this way, the US-courts have acknowledged the priority of the public interest to the rights of parents. So far as pregnant Jehova’s witnesses are concerned, though, the US-courts tend to acknowledge the priority of freedom to birth of the pregnant women. It is of our great concern, what decision Korean courts will make in the future, especially with relation to viable fetus, when it comes to deprivation of the chance of being birth. Third, in Korea, it is of decisive importance for the question of necessity of consent of the parents or autonomy right of the patient whether the patient is minor or adult. But I would like to point out that age or denial of the legal capacity cannot be the only reason for the denial of autonomy right of the patient. Refusal of blood transfusion based on religious dogmas does not always reflect the decisions with relation to the sanctity and dignity of a person and the fundamental right to pursue happiness. Lastly, relevant decision of Korean court requires reconfirmation of the intent of the patient when the danger to life is in existence even if the patient has expressed his or her refusal intention of blood transfusion beforehand. Consequently, the intention of the family members or relatives are also room to be taken into consideration as the intention of the patient cannot normally be confirmed under concrete present danger to life during operations. Such decisions reflect the traditional family- oriented culture of the Korean society. Here lies a room for guardian’s intention, other than that of the patient himself or herself. Korean Civil Code was revised recently to the effect that the court can not only deprive, suspend, partially restrict the parental rights, but also make a decision which is substitutive for the consent of those who have parental rights. Moreover, I expect the Korean courts to overcome standardized criteria with relation to the existence of the consent, which are not always reasonable. Although the patient is neither minor nor the restricted person in his or her legal capacity, we must be considered to examine whether the determination of the patient was made seriously and autonomically under capability of reasonable thinking. Development of judicature in this direction is highly expected. The discussions on the set of problems with relation to the refusal of blood transfusion of Jehova’s witnisses are to be begun now.