Review of domestic and international legislative trends related to surrogate mother contracts, and differences in perspective between medicine and law

Abstract

The medical development of Assisted Reproductive Technology (ART) significantly assists infertile couples who are unable to conceive or carry a child as a result of congenital or acquired diseases. However, the process of artificial insemination by surrogacy arrangements or surrogate pregnancy has caused continued controversy surrounding legal and ethical issues. While surrogacy arrangements/surrogate pregnancy are considered invalid in the court, such measures are in practice performed with the assistance of doctors. From the legal perspective, although the measures are not recognized as the form of pregnancy and birth, the practice of surrogacy has already existed from the medical & practical viewpoints, indicating a significant gap between two sides. There are growing concerns about problems with surrogate pregnancy. The absence of stated regulations on such practice could lead to the failure in fulfilling duty by mutual parties, therefore having difficulty in securing the legal status of a baby. The health of a surrogate mother can be possibly damaged. Additionally, the intervention of illegal brokers could lead to the dangers of excessive commercialization. In fact, there are few statistics on how many children are formally born through such practice, therefore causing social problems for a long time, such as the related fraud, refusal to surrender a child, etc. In spite of such problems, it is hard to come up with active countermeasures or prepare statistics. Accordingly, this paper explores the differing views between the court and the medical community on surrogate pregnancy. By conducting a comparative study on the latest social status and the systems at home and abroad, this paper is aimed to arrive at a conclusion on desirable improvements in the system based on in-depth interviews with surrogacy-related experts in Korea. To accomplish this, the paper provides a change in the current system and a review of intervention. In addition, to secure safety of surrogate mothers and contracting parties and prevent any harm, the paper presents a viewpoint on whether a social consensus can be reached as to what issues should be considered top priority regarding the progress of discussions in the future.