잔여 배아의 처분에 관한 기본권 논증

Abstract

In Republic of Korea, according to the Bioethics and Safety Act, residual embryos are preserved and disposed of if they are not donated for research after the period ends. Since embryos grow into human beings after implantation unless there are special circumstances, the right to life can be recognized from that time. And because human dignity is an innate status that humans acquire due to their uniqueness as human beings, human dignity can be recognized in embryos from the time of implantation, the beginning of human existence. Although residual embryos are pre-implantation embryos, they have constitutional value as potential human beings, and therefore, the protection of residual embryos can be recognized as a public interest pursued by the norm restricting the fundamental right to dispose of residual embryos. The embryo creator has the right to make decisions regarding the embryo based on Article 10 of the Constitution. Accordingly, embryo creators may wish to extend the preservation period for social and economic reasons or by submitting a pregnancy procedure plan, but Article 21, Paragraph 1 of the Enforcement Regulation of the Bioethics and Safety Act limits the reasons for extending the preservation period to medical reasons, and may wish to choose reproductive donation to protect residual embryos after the preservation period has expired, but Article 25, Paragraph 3 and Article 32, Paragraph 2 of the Bioethics and Safety Act fundamentally prohibit this. Therefore, the above restrictive norm can be said to be against the principles of minimal damage and balance of legal interests, and violates the principle of proportionality, thereby infringing upon the right to self-determination of embryo creators, and thus is unconstitutional. The embryo researchers have the freedom of research based on Article 22, Paragraph 1 of the Constitution. Accordingly, embryo researchers may wish to use residual embryos after the primitive streak appears for research, but Article 29, Paragraph 1 of the Bioethics and Safety Act limits the research subjects to embryos before the primitive streak appears. Therefore, the above restrictive norms can be said to be against the principles of minimal damage and balance of legal interests, and violate the freedom of research of the embryo researchers by not complying with the principle of proportionality, and thus, they are unconstitutional. The women of childbearing age have the right to self-determination on pregnancy and childbirth based on Article 10 of the Constitution. Accordingly, women of childbearing age may decide to get pregnant through reproductive donation in order to protect residual embryos whose preservation period has ended, and patients with infertility due to egg abnormalities or genetic diseases may prefer reproductive donation over adoption, but Article 25, Paragraph 3 and Article 32, Paragraph 2 of the Bioethics and Safety Act fundamentally prohibit this. Therefore, the above-mentioned restrictive norms can be said to be against the principles of minimal damage and balance of legal interests, and violate the principle of proportionality, thereby infringing upon the right of women of childbearing age to self-determination on pregnancy and childbirth, and thus is unconstitutional.