성분화질환자의 성별 자기결정권 확보방안 (The Secure Measures of Right to Gender Determination of Patients with Sexual Differentiation Disease)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 과학기술과 법 / 13권 / 1호 / 121 ~ 146페이지
· 저자명 : 송영민

초록

The gender of the son, according to the purpose of United Nations Convention on the Rights of the Child, Article 12, should be determined after considering his opinion in accordance with age and maturity, and then, the son should determine the gender with accurate and enough information to form his opinion about the gender.
The son has the right to acquire his gender from the birth, and the parents have the right and obligation to determine the gender of their son, and government should not interrupt the gender determination by parents and their son. Therefore, the son whose gender is undecided when he was born also has the right not to be compelled to determine the gender.
Under current law, male and female dichotomous system, recognition of third sex, and also the relation of birth registration should be considered to guarantee the right to gender determination of the son who was born sexually undifferentiated, and they are summarized as follows.
First, Under current law, male and female dichotomous system of gender shall maintain in principle, and permanent lifetime third sex shall not be recognized. In addition, the establishment of permanent third sex is also not recognized, but maintenance of legal status as gender undetermination should be recognized until when the final decision is made by himself.
Second, Under Act on the Registration, etc. of Family Relationship or its practice, the device of birth registration in gender undetermination condition should be prepared, that is to say, not only “male” or “female” but also “gender undetermination” should be prepared for selection option in birth registration form. These writing method is not to recognize permanent third sex but to recognize temporary until when the son grows up and performs his right to gender determination, and completes the gender subsequently in birth registration form.
Third, in terms of law, gender determination of the son is the matter how to harmonize the right of the son who lives on and the right and obligation of the parents who bring up.
The basic structure is that the right of the parents decreases gradually according to maturity of understanding and judgement of the son, and the right of the parents terminates when the judgement of the son matures enough. In other words, the step theory of gender, which gender is determined by maturity of the son, is that the decision right of the parents terminates and the son has the right to decide when the son has the judgement enough to decide the solution to the problem. However, the gender determination, even if the son can make a final decision applying the principle of mature minor, would influence all over his lifetime and simultaneously his mind and body for a long time unlike consent or refusal of one-time surgical operation.
The sexual differentiation of brain of people shall confirm at the age of 2 or 3, so if sexual signs appeared at this time, the parents could determine ‘the sex of nurturing’ and complete the birth registration form subsequently.
However, although the gender in birth registration form was completed subsequently at that time, the application of gender change should be recognized in case the son selects the opposite sex. For this, except inevitable reasons, the parents should not perform irreversible surgical operation like gonad removal which would interrupt the final gender determination of the son.

영어초록

The gender of the son, according to the purpose of United Nations Convention on the Rights of the Child, Article 12, should be determined after considering his opinion in accordance with age and maturity, and then, the son should determine the gender with accurate and enough information to form his opinion about the gender.
The son has the right to acquire his gender from the birth, and the parents have the right and obligation to determine the gender of their son, and government should not interrupt the gender determination by parents and their son. Therefore, the son whose gender is undecided when he was born also has the right not to be compelled to determine the gender.
Under current law, male and female dichotomous system, recognition of third sex, and also the relation of birth registration should be considered to guarantee the right to gender determination of the son who was born sexually undifferentiated, and they are summarized as follows.
First, Under current law, male and female dichotomous system of gender shall maintain in principle, and permanent lifetime third sex shall not be recognized. In addition, the establishment of permanent third sex is also not recognized, but maintenance of legal status as gender undetermination should be recognized until when the final decision is made by himself.
Second, Under Act on the Registration, etc. of Family Relationship or its practice, the device of birth registration in gender undetermination condition should be prepared, that is to say, not only “male” or “female” but also “gender undetermination” should be prepared for selection option in birth registration form. These writing method is not to recognize permanent third sex but to recognize temporary until when the son grows up and performs his right to gender determination, and completes the gender subsequently in birth registration form.
Third, in terms of law, gender determination of the son is the matter how to harmonize the right of the son who lives on and the right and obligation of the parents who bring up.
The basic structure is that the right of the parents decreases gradually according to maturity of understanding and judgement of the son, and the right of the parents terminates when the judgement of the son matures enough. In other words, the step theory of gender, which gender is determined by maturity of the son, is that the decision right of the parents terminates and the son has the right to decide when the son has the judgement enough to decide the solution to the problem. However, the gender determination, even if the son can make a final decision applying the principle of mature minor, would influence all over his lifetime and simultaneously his mind and body for a long time unlike consent or refusal of one-time surgical operation.
The sexual differentiation of brain of people shall confirm at the age of 2 or 3, so if sexual signs appeared at this time, the parents could determine ‘the sex of nurturing’ and complete the birth registration form subsequently.
However, although the gender in birth registration form was completed subsequently at that time, the application of gender change should be recognized in case the son selects the opposite sex. For this, except inevitable reasons, the parents should not perform irreversible surgical operation like gonad removal which would interrupt the final gender determination of the son.

참고자료

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