Managing Attorney Noh Jong-eon | Hankyung Law&Biz Law Street Column

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Consent requirements at the embryo transfer stage, the law is silent

In his column, Managing Attorney Noh Jong-eon analyzes the case in which actress Lee Si-young became pregnant by having a frozen embryo transferred without the consent of her ex-husband, from whom she had divorced. The current Bioethics and Safety Act clearly requires written consent from both spouses when embryos are created through in vitro fertilization, but it remains silent on the consent requirements at the embryo transfer stage—especially after a major change in status such as divorce. For this reason, it is difficult to punish Lee Si-young's conduct under current law.

Implied consent — even after divorce, exposed to the 'risk of becoming a parent'

According to Managing Attorney Noh Jong-eon's column, in a similar past case, the ex-husband filed a civil damages claim against the hospital, but the court dismissed the claim, reasoning that if the ex-husband's initial consent had not been formally withdrawn, the hospital could regard 'implied consent' as continuing. According to this precedent, an individual who has not explicitly withdrawn consent for embryo disposition upon divorce is inevitably exposed to the risk of becoming a parent, regardless of his or her own will.

Whether the presumption of legitimacy applies is the key

Article 844 of the Civil Act's 'presumption of legitimacy' rule presumes that a child born within 300 days after the end of a marriage is the husband's biological child. However, because the court views the point at which pregnancy begins as implantation rather than fertilization, the presumption of legitimacy may not automatically apply in the case of frozen embryo transfer. However, as the ex-husband has publicly stated his responsibility as a father, legal father-child relations are likely to be established through voluntary acknowledgment, and in that case full legal rights and obligations such as child support, inheritance rights, parental authority, and visitation rights arise.

'The right to become a parent' and 'the right not to become a parent'

Managing Attorney Noh Jong-eon concludes the column as follows. This case goes beyond a simple celebrity privacy issue and is a flashpoint that tests the limits of existing law and social norms regarding family, consent, and the meaning of life. As the limitations of the current legal system, which cannot keep pace with the speed of advances in biotechnology, have been exposed, social discussion is needed on how to regulate the ethical, biological, and legal status of frozen embryos in relation to the fundamental ethical dilemma of 'the right to become a parent' and 'the right not to become a parent.'

「Family Law Unboxing」 is a series regularly serialized in Hankyung Law&Biz Law Street of The Korea Economic Daily. Attorneys Yoon Ji-sang and Noh Jong-eon of Jonjae Law Firm take turns unpacking key issues in divorce and inheritance based on their practical experience.