비혼인동거자 사이의 인공수정과 그 법률관계

The assisted conception between an unmarried couple and the legal relationship - As a momentum of Breit case

This thesis studied whether it is accepted to determine parentage of a known sperm donor, whose child is born by in vitro fertilization(IVF) between an unmarried couple. People have generally taken a position that artificial insemination by donor(AID) between an unmarried couple should acknowledge the assisted conception only for a wife of legal marriage. However, the Breit v. Mason and L. F., a minor case, which is set as a material on this thesis, is the instance of IVF between an unmarried couple. The sperm donor(Breit) and the gestational mother(Mason) have maintained the relationship of cohabitation for quite a long time and they have wanted to have a child. They have faced difficulty in getting a child in sexual intercourse, therefore, they have decided to take a method of IVF. It is the point at the issue in this thesis whether the sperm donor cannot raise a petition to determine parentage on a child born by AID because he is not the legal husband of gestational mother. Thus, the issue on whether the position of “a known sperm donor” is acknowledged as a legal father, whose child is born by AID between de facto marriage or an unmarried couple has been outside from a subject of discussion so far. I got to the conclusion as follows: First of all, it is not any enough evidence to consider differently the assisted conception conducted by an unmarriged couple as IUI(Intra Uterine Insemination) and AID(i.e. AIH: artificial Insemination with husband’s semen) between a married one. Secondly, in the necessary conditions of de facto marriage if intention of marriage is vague, it could be understood that the judicial precedent of Korean Supreme Court can be presumed the intention of marriage from the objective connubiality according to the custome of marriage and bona fide. Thirdly, although it is difficult for unmarried-cohabitee to be accepted as de facto marriage, it cannot deny a blood relationship between AID child and sperm donor only for the reason an unmarried couple are not in the legal marriage. Lastly, excluding the intended father in the decision of guardian ad litem, which lead to an unexpected result to violate the right of self-determination in the current situation that the assisted conception through AID cannot be relinquished, is against the principle of children welfare. It is thought that the suggestions of Breit's case have a significant value of taking account of establishment of legislations or legal policies relevant to the assisted conception.