"No Procedure for Obtaining Consent for Embryo Implantation Under Current Law"
"If Paternity Is Acknowledged, Inheritance Rights Apply"
Actress Lee Siyoung has sparked controversy after becoming pregnant and giving birth to her second child using a frozen embryo, without the consent of her ex-husband. Experts have stated that, under current law, criminal punishment would be difficult.
On November 17, attorney Lee Jungmin explained on YTN Radio's 'Lee Wonhwa's Case X-File,' "According to the Bioethics Act, there is a clear regulation requiring confirmation of both parties' intentions when creating a fertilized embryo. However, there is no provision requiring confirmation of both parties' intentions at the time of embryo implantation."
He continued, "Therefore, there is naturally no regulation stipulating punishment for proceeding without consent. It seems that if both parties agreed to create a fertilized embryo, it is presumed they would also agree to implantation."
Lee Siyoung married businessman A, who is nine years her senior, in 2017 and gave birth to a son in January of the following year. However, after eight years of marriage, they divorced in March of this year. During her marriage, Lee Siyoung had fertilized embryos frozen and underwent IVF, announcing that she gave birth to a daughter on November 5.
However, controversy arose when it became known that Lee Siyoung became pregnant with her second child without her ex-husband's consent. In July, Lee Siyoung confessed, "Just as all legal matters were being settled, the five-year storage period for the frozen embryos was coming to an end, and I was faced with a decision. As the disposal date approached, I personally decided to proceed with the implantation. Although the other party did not consent, I intend to bear the full weight of my decision."
Attorney Lee stated, "In reality, to prevent such controversies, consent forms for creating fertilized embryos sometimes include a clause stating that 'the frozen embryos will be stored for five years and may be used for implantation during that period.' It is presumed that Lee Siyoung's ex-husband read and agreed to such a clause when the embryos were created."
Regarding whether legal action such as a claim for damages would be possible if an ex-spouse raised an issue in a similar situation, he said, "If the consent form included implantation and was signed, it would be difficult to raise an issue later. However, if the ex-spouse expressed an intention to withdraw consent before implantation, that could be problematic. If consent was withdrawn and opposition was clearly stated, but the implantation proceeded regardless, there is a possibility that civil liability for damages could arise as an illegal act."
As for whether the second child and Lee Siyoung's ex-husband are legally recognized as parent and child, he explained, "Under civil law, a child born to a wife during marriage is presumed to be the child of the husband. If the implantation occurred after the divorce, the child cannot be presumed to be the ex-husband's; instead, the child is considered an out-of-wedlock child with the ex-husband's DNA. Unless the ex-husband acknowledges paternity, they are legally unrelated. This is similar to the case involving actor Jung Woosung."
He added, "If paternity is acknowledged and a father-child relationship is established, the legal rights and obligations toward the child remain the same even after divorce. This includes paying child support, and as a biological child, the child would be legally recognized as a first-priority heir."
Attorney Lee concluded, "Currently, there is no procedure for obtaining renewed consent at the time of frozen embryo implantation, so if the timing to withdraw consent is missed, one may end up meeting a child born against their wishes. It is important to carefully read the consent form when creating frozen embryos and, if you do not wish to have a child after divorce, to submit a withdrawal of consent in accordance with your intentions. These points should be kept in mind."
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