대리출산 자녀의 모자관계 결정기준

Study on determining factors of legal maternity of the child born through gestational agreements

The development of bio-technology and medicine has created new problems associated with family law, especially the rule to decide who the parents of a new born baby are. Among these, the hottest issue may be the determination of legal maternity of the children born by gestational agreements. In this case, there can be three candidates, one who carried the child, another whose gamete was used for this process and the other who managed this process intending to become mother of the baby. But the literature on this issue can divided only two opinions, because the last two, that is, the gamete mother and the intent mother is the same person in general case. Then, who is the mother of such child? Before searching for the answer, it should not be overlooked that it doesn t need to be treated as a zero-sum game. In this respect, such solution as respects intention of all candidates is the best. It can be summarized as follows: Although a child is born through such agreement, the woman who was carrying or has carried a child as a result of the ART process should be treated as the mother of the child. It is true that some literature argues that the so-called intend mother be treated as the natural mother, but it seems to overlook that the intent mother can adopt the child under much easier condition than others. Thai is, the parties who intended to be parents and led the ART process can be legal parents only through the court order holding that a child to be treated in law as the child of the intending parties. In result, regarding the parentage of the children born by gestational agreements, the semi-adoption system is considered to be an alternative. Therefore, there is no reason to justify excluding gestational mother from the life of the child. In addition, given the complexity and diversity of the modern family, the law should allow that a child may have more than two parents and that parenthood should not necessarily be an all-or-nothing status.