Surrogacy contracts, the birth mother, and abuse of the right of action

1. 01Question

   Is a surrogacy agreement to hand over a child conceived and born by assisted reproduction void, is the surrogate's waiver of her rights as birth mother also void, is the woman who gave birth the child's mother, and may a suit for confirmation of the parent-child relation exceptionally be refused as an abuse of the right of action where it runs markedly against the child's welfare?

2. 02Holding

   The surrogacy agreement is void as a legal act contrary to good morals and social order under Article 103 of the Civil Act, because it turns a woman's body into a tool, turns the child into an object of trade and breaks the emotional bond formed in pregnancy and birth. An agreement by the surrogate to give up all her rights as birth mother is void too, being part of that contract or an extension of it. Where the birth mother and the child are linked by blood, she is the child's mother even though the birth came about under a void contract. A suit for confirmation of a parent-child relation is not to be lightly rejected as an abuse of the right of action, since establishing the true status is itself a lawful act; it may exceptionally be refused only where special circumstances make it markedly contrary to the child's welfare, which is judged by weighing the listed circumstances together.

   Summary of the holding, verbatim

   그러나 자녀의 복리는 친자관계의 성립과 유지에서 가장 우선적으로 고려해야 할 사항이므로, 친생자관계존재확인의 소를 통해 진실한 신분관계를 귀속시키는 것이 오히려 자녀의 복리에 현저히 반하게 되는 특별한 사정이 있다면 친생자관계존재확인의 소도 예외적으로 소권남용에 해당하여 허용되지 않을 수 있다.

   Unofficial English translation

   However, since the welfare of the child is the matter that must be considered as the foremost priority in the formation and maintenance of a parent-child relationship, if there are special circumstances in which attributing the true status relationship through an action to confirm the existence of a parent-child relationship would rather be markedly contrary to the welfare of the child, the action to confirm the existence of a parent-child relationship may also exceptionally constitute an abuse of right and therefore not be allowed.

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심판결을 파기하고, 사건을 서울가정법원에 환송한다.

   Unofficial English translation

   The judgment of the court below is reversed, and the case is remanded to the Seoul Family Court.

4. 04Form of the test

   Circumstances weighed Stated in the decision

   원고 외에 현저하게 불이익을 받는 자의 유무 등의 사정을 종합적으로 고려하여 신중하게 판단하여야 한다.

   Unofficial English translation

   a careful determination must be made by comprehensively considering circumstances such as whether there is any person other than the plaintiff who would suffer significant disadvantage.

5. 05Factors

   • 여성의 몸을 도구화하고, 출생한 자녀를 거래의 객체화하며, 임신과 출산 과정에서 형성된 모자간의 정서적 유대관계를 깨뜨려 인간으로서의 존엄성을 침해하므로
   • 출산한 모와 자녀 사이에 혈연관계도 존재한다면
   • 법률상 친자관계가 진실한 혈연관계와 달라진 경위
   • 법률상 부모와 자녀가 친생자관계에 준할 정도의 정서적 유대와 실질적 생활관계를 형성·유지해온 기간과 내용
   • 원고가 친생자관계존재확인의 소에 이른 경위와 동기 및 목적

   Unofficial English translation

   • because it instrumentalizes the body of women, objectifies the born child as an object of transaction, and breaks the emotional bond between mother and child formed during the process of pregnancy and childbirth, thereby infringing upon human dignity

   • if a blood relationship also exists between the mother who has given birth and the child

   • the circumstances under which the legal parent-child relationship came to differ from the true blood relationship

   • the period and content for which the legal parents and the child have formed and maintained an emotional bond and a substantive living relationship tantamount to a parent-child relationship

   • the circumstances, motive, and purpose under which the plaintiff came to bring the action to confirm the existence of a parent-child relationship

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2004. 6. 24. 선고 2004므405 판결

   Unofficial English translation

   Supreme Court Decision 2004Meu405 decided June 24, 2004

   Decisions referred to

   [1][2] 대법원 2019. 10. 23. 선고 2016므2510 전원합의체 판결(공2019하, 2205) / [2] 대법원 2004. 6. 24. 선고 2004므405 판결

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Where the birth mother has no blood link to the child, for instance where the ovum was donated, who is the child's mother, and how does that affect the abuse-of-right analysis?

   The remand judgment of the Seoul Family Court on whether confirming the relation markedly harms the child's welfare will show how the listed circumstances are weighed in practice. A later decision on surrogacy with a donated ovum, or an amendment to Article 103 or Article 865(1) of the Civil Act, would require this entry to be read again.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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