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Legitimacy of the Legal Storage Limits for Frozen Embryos in South Korea

October 1, 2020
Edition: Fall 2020
Volume: 35
Issue: 2
Article: 2

Table of Contents

Abstract

In South Korea, the Bioethics and Safety Act sets a fiveyear embryo storage limit and does not allow for an extension of the storage period upon embryo creators’ requests. No legislative document states the intent of this restrictive law, and no academic paper has assessed whether it is reasonable. In a 2010 decision, the Constitutional Court of Korea declared that this law’s restrictions on embryo creators’ will is legitimate. The court provided four reasons frequently raised to support such restrictions in other countries: the increased social burden of maintaining frozen embryos, embryos’ post-thawing viability, remaining embryos’ misuse risks, and similar legislations in other countries. This article challenges this position based on an analysis of the Korean context and technological developments. It finds that, by allowing embryo creators to extend the storage beyond the five-year limit, Korea’s social burden—the costs related to infertility treatments and the low birth rate—may be reduced. It also reports that biotechnology advancements have addressed post-thawing viability-related issues; furthermore, embryo misuse risks can be addressed via other regulatory options. Moreover, this article lists other legislation that allow for extensions of the embryo storage period based on the creators’ will and these laws’ legislative intent. Thus, this article concludes that the Bioethics and Safety Act should be revisited based on Korea’s current social context and up-to-date technologies’ adaptability.

Keywords: frozen embryo, storage limit, law, social context, South Korea

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About the Authors

Affiliation: Assistant Professor, Yonsei University. D.J.S., Georgetown University Law Center, 2014; M.S.L., Stanford Law School, 2007; M.P.H., Seoul National University, 2007; LL.B., Seoul National University, 2004. This work was supported by the Ministry of Education of The Republic of Korea and the National Research Foundation of Korea (NRF-2016S1A5A8017475). 117