Gestational surrogacy is fairly accepted in Korea. Still, no definite programs under other authorities or medical guidelines are strictly executed to homogenize surrogacy in Korea. Surrogacy in Korea is not readily accepted by the general population. Negative hype by the Korean media is one of the primary reasons surrogacy becomes an opprobrious practice for Korean people.
Presently, Korean law does not ban, does not allow, or set any morals for surrogate mothers. In other words, there has no way been a law in Korea that directly deals with surrogate mothers. Several related bills, including the Act on external fertilization which was proposed in April 2006, allow surrogacy for non-profit purposes, and the Offer on Medical Aid Birth, which invalidates all types of surrogacy contracts, were submitted to the National Assembly, but the bill failed to pass due to colliding opinions from stakeholders. In the event of a case involving a surrogate ma in Korea, one of the applicable laws applied by the prosecution and the court is Composition 23- 3 of the Bioethics Act. This provision states that no person shall give, use, induce or arrange the use of embryos, eggs, or sperm on condition of capitalist, property interests, or other contrary payments. In other words, it’s illegal to give or use ova for the capitalist. Still, surrogacy does not apply. The surrogate ma’s client’s in-vitro fertilized embryos with her own eggs and sperm will not be punished if she’s allowed to implant them into the surrogate ma’s. There is also no clear discipline provision for surrogate mothers of the type who interlace the fertilized egg. For this reason, there are constant cases where surrogate mothers are fairly giving birth overseas.
It’s noteworthy that the Guidelines give that the conduct of Assisted Reproductive Technology for surrogacy must be subject to the former review of the applicable institution bioethics review commission. This implies that the conduct of artificial coition or implantation of the conceived embryo in a surrogate ma is not banned. It’s also worth noting that the station of the Ethical Guidelines for supported Reproductive Medicine of the Korean Society of Obstetrics and Gynecology differs from that of the guidelines of the Japanese counterpart. Still, the degree and extent of the divagation may be determined depending on how the commission actually handles the deliberation process.
The following discussion considers the domestic case in which a surrogacy agreement (‘domestic surrogacy agreement’) is signed and a surrogate ma gives birth to a child in Korea. The analogous case can be supposed as giving rise to issues mainly under the Korean Civil Act, as well as the Constitution and mortal rights law. The issues girding surrogacy include the following
- whether surrogacy is permitted
- whether surrogacy agreements are valid and what goods they produce
- what the legal status of the child born through surrogacy should be, thus who should be regarded as the father and ma of the child.
While it is not queried that there is commerce between the two, the validity of surrogacy agreements does not directly impact the legal status of the child born through surrogacy.
It can be concluded that substantial law issues arise from a typical surrogacy case where a wedded Korean couple enters into a surrogacy agreement with a foreign surrogate ma and arranges for her to give birth to a child.
Private international law issues from the perspective of Korean law
- the validity of surrogacy agreements and the lineage of the child born through surrogacy on substantial law
- the private international law issues i.e, the law applicable to the validity of surrogacy agreements and the lineage of the child born through surrogacy.
Private international law issues arise because there is a conflict between laws and values among various States. More precisely, under Korean law, the surrogate ma is likely to be viewed as the legal ma according to the birth principle, whereas in countries where Korean intended parents tend to go(e.g., California), the intended ma is regarded as the legal ma according to the intent principle. The question is whether, from the perspective of Korean courts, the operation of Californian law and the recognition of the California court judgment attesting to the establishment of lineage between the intended ma and the child born through surrogacy would constitute a violation of Korean public policy. Considering the conservative station of the Korean courts, they are likely to refuse the operation of the foreign law along with the recognition of the foreign judgment on the grounds that it constitutes a violation of Korean public policy. In principle, such a station seems respectable, but in the future, with the increase of the mindfulness of the Korean society of the significance of abecedarian rights and mortal rights, exceptions will clearly be accepted with lower resistance.
Ravi Sharma is a self-motivated, successful entrepreneur and has a solid experience in the fertility segment. and he is the director at ARTbaby Global (ARThealthcare). He is a pharmacy graduate with post-graduation in business administration and has 14 years of rich experience in the field of infertility segment. He loves to write about IVF, Surrogacy, and other ART (assisted reproductive technology) news, issues, and updates. He is a Pharmacy graduate (B. Pharm) and M.B.A (marketing).
His most recent success includes the successful launch of the medical tourism company, ARTbaby, which offers treatment options for infertility, egg donation, and surrogacy. He likes spending time with his family and writing about various aspects of IVF surrogacy and donating eggs.