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KMID : 0986720180260010133
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Korean Journal of Medicine and Law
2018 Volume.26 No. 1 p.133 ~ p.162
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Presumption Rule of Paternity between Gender Changer due to GID and In-vitro Fertilizer among Non-spouses
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Kim Min-Kyou
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Abstract
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We can not conclude always as a child of her husband as one’s wife is pregnant during marriage. A maternal and child relationship is established by the fact of wife’s birth, but we can not necessarily say that a father-child relationship is established even if one’s wife gave birth to a baby during marriage. Therefore, in Article 844 Para. 1 of Civil Act of South Korea, it is prescribed that a person whose wife is pregnant during marriage is presumed as a baby of her husband. However, it is not presumed as the baby of mother’s husband when a baby is born in a situation that the sexual bond between married couple is impossible and parent-child relationship also is not established with father. It is because there is not the true blood ties. And so, taking into consideration the external appearance(objective) or individual circumstances(subjective) in the cases of South Korea, when there is not the true ties of blood between mother’s husband and child, the scope of denying the presumption rule of parent-child relationship with him is expanding more and more. But, when a male who has undergone sex change from a female to a male(FTM) due to gender identity disorder(GID) got married to a woman and his wife gave birth by a donor’s sperm provided under her husband’s consent(AID baby), it is to become an issue whether parent-child relationship between mother’s husband and AID baby is presumed or not. In this case, blood relationship can not exist with AID baby because the mother’s husband does not have reproductive ability
By the way, recently it is compared to being diluted increasingly the tendency to emphasize the true ties of blood in parent-child law, the tendency to assent to parent-child relationships with parents willing to care for even children who are not related to blood relationship is deepen gradually. As a representative example, provisions for Full Adoption of a Child can be cited in Article 908-2 etc. in Civil Act of South Korea. Therefore, when one’s wife gave birth to a baby during marriage under husband’s consent, it is desirable to admit paternity relationship between a gender changer(mother’s husband=father) due to GID and an AID baby because they have a parenting intention. Also in Japan, the Supreme Court has a ruling that allowed parent-child relationship in 10th Dec. 2013. I expect that the logic of solving such issue will have a significant influence on in vitro fertilization among non-spouses(AID) and surrogacy.
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KEYWORD
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GID, Gender Identity Disorder, AID, Artificial Insemination by Donor, Presumption of Paternity, Legal Rules of Paternity, True Ties of Blood, Surrogacy, Autonomy in Life
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