태아의 권리능력 재논의 필요성에 대한 제언(提言)

Abstract

Although biotechnology plays an important role in modern medicine, it does give rise to a host of legal and ethical issues. This article examines the legal status of unborn life in order to establish the proper future direction of biotechnology. When Civil Law was first legislated, an “unborn life” was considered to be a fetus in a mother’s body and something generated by sexual intercourse. However, biotechnology has since changed the scope of that term. For instance, an embryo can now be created in number of ways in addition to sexual intercourse, such as in vitro fertilization and somatic cell cloning. Furthermore, biotechnology allows for the detection of the genetic identity and growth potential of a fertilized egg, which arguably supports the view that the legal status of an artificial embryo is equal to that of a fetus. The author of this article examines the legal status of fetuses in Civil Law. It is claimed that clauses of Civil Code for the protection of fetuses should be interpreted as exceptional provisions. It is also argued that a fetus acquires the capacity for enjoying private rights in utero and that Article 3 of the Civil Code should be revised to state that a human being is the subject of rights and obligations from fertilization and throughout survival.