생명과학기술의 발전과 헌법

정재황, "생명과학기술의 발전과 헌법(신국판)", 정책개발연구 4권, 헌법재판소, 2012, p.1

생명과학기술의 발전과 헌법.pdf

< 목 차 >
제 1 장 서론 ····································································· 1
제 1 절 연구의 목적 및 필요성 ········································ 1
Ⅰ. 연구의 목적 ····································································· 1
Ⅱ. 연구의 필요성 ································································· 2
1. 생명과학기술의 발전의 필요성과 위험성 ··················· 2
2. 생명과학기술 발전이 가져올 문제에 대한 헌법적 해
명과 헌법재판에서의 대비 필요성 ···································· 3
제 2 절 연구범위 ·································································· 7
Ⅰ. 생명과학’의 개념과 연구범위 개관 ···························· 7
Ⅱ. 연구의 내용 ····································································· 8
1. 개관 ··················································································· 8
2. 본 연구의 특수성 ··························································· 9
3. 구체적 내용 ··································································· 10
제 3 절 연구방법 ································································ 15
Ⅰ. 문헌연구와 판례분석연구 ··········································· 15
Ⅱ. 외국법적/비교법적 고찰 ············································· 15
Ⅲ. 실제성, 전문성 있는 연구 ·········································· 16
제 2 장 한국에서의 생명과학기술과 헌법 ········ 18
제 1 절 배아줄기세포연구와 헌법 ·································· 19
Ⅰ. 배아줄기세포연구의 의미 ··········································· 19
1. 줄기세포의 개념 ····························································· 19
2. 줄기세포의 종류 ····························································· 21
3. 줄기세포의 획득방식 ····················································· 23
4. 줄기세포의 응용분야 ····················································· 26
5. 줄기세포이용의 無用性과 위험성 및 한계 ··············· 32
6. 줄기세포연구에 대한 윤리적 문제제기 ····················· 34
7. 규범적 해결책으로서 생명윤리 및 안전에 관한 법률····················· 36
8. 생명윤리법상 배아줄기세포연구 ································· 41
Ⅱ. 배아줄기세포연구와 헌법적 문제 ····························· 45
1. 배아줄기세포연구 시 나타날 수 있는 헌법적 문제의소재 ··········· 45
2. 배아의 도덕적 지위와 관련된 기본적인 헌법문제로서 인간존엄과 생명권···························· 45
3. 배아의 인간존엄과 생명권에 대한 국가의 기본권 보호의무 ························· 46
4. 배아줄기세포연구의 제한을 통한 환자들의 건강권과 생명권 내지 행복추구권 ······················ 47
5. 배아줄기세포연구 제한을 통한 직업수행의 자유 내지 학문의 자유의 제한 ························ 48
6. 배아생성자의 자기결정권 ············································· 48
Ⅲ. 배아줄기세포연구에 있어서 원리로서 인간존엄과 구체적 기본권으로서 생명권 ·················· 49
1. 인간존엄 개념과 기능의 문제점 ································· 49
2. 배아줄기세포연구에 있어서 구체적인 인간존엄 침해의 문제 ·································· 52
3. 인간존엄과 생명권의 관계 ··········································· 56
4. 원리적인 인간존엄보다 구체적 기본권인 생명권으로 평가우선 ································ 64
5. 배아줄기세포연구를 통한 생명권 제한 ····················· 67
6. 환자의 생명권 내지 건강권 ········································· 73
Ⅳ. 배아줄기세포연구와 학문의 자유 ····························· 76
1. 헌법상 학문의 자유 ······················································· 76
2. 헌법상 보호되는 학문의 개념 ····································· 81
3. 학문의 자유에 대한 제한 ············································· 93
4. 연구의 자유 제한의 정당성 ········································· 98
5. 생명윤리법상 배아줄기세포연구 제한의 실제 ······· 110
Ⅴ. 배아줄기세포연구와 부모의 자기결정권 ··············· 112
1. 헌법상 부모의 자기결정권 ········································· 112
2. 배아줄기세포연구 시 부모의 자기결정권의 내용 · 115
3. 배아줄기세포연구 시 부모의 자기결정권에 대한 제한 ·········· 118
4. 부모의 자기결정권 제한에 대한 정당성 ················· 119
5. 생명윤리법의 개정 ······················································· 120
Ⅵ. 배아에 대한 국가의 생명보호의무 ························· 121
1. 기본권 보호의무의 의미 ············································· 121
2. 기본권 보호의무의 내용과 한계 ······························· 126
3. 기본권 보호의무의 헌법상 심사기준 ······················· 129
4. 배아줄기세포연구에 있어서 기본권 보호의무 위반여부 ······················ 130
제 2 절 착상전 유전자진단과 헌법 ······························ 134
Ⅰ. 착상전 유전자진단의 의미 ······································· 134
1. 착상전 유전자진단의 개념 ········································· 134
2. 착상전 유전자진단의 방법 ········································· 136
3. 착상전 유전자진단의 활용가능성 ····························· 137
Ⅱ. 착상전 유전자진단에 대한 입법자의 대응 ··········· 138
1. 관련규정 ········································································· 138
2. 배아보호취지의 감소 ··················································· 139
3. 착상전 유전자검사 허용기준의 흠결 ······················· 141
Ⅲ. 착상전 유전자진단과 생명권 ··································· 141
1. 착상전 유전자진단 시 생명권의 제한 ····················· 141
2. 착상전 유전자진단 시 생명권 제한의 정당성 ······· 143
Ⅳ. 착상전 유전자진단과 부모의 자기결정권 및 알권리························· 147
1. 부모의 자기결정권 실현수단으로서 착상전 유전자진단 ···························· 147
2. 부모의 알권리 실현수단으로서 착상전 유전자진단 ········································· 148
3. 착상전 유전자진단의 제한으로 인한 부모의 기본권 제한과 정당성························ 148
Ⅴ. 의사의 직업의 자유 내지 학문의 자유로서 연구의자유 ······················· 152
Ⅵ. 배아에 대한 국가의 생명보호의무 ························· 154
1. 위헌심사기준으로서 과소보호금지원칙 ··················· 154
2. 배아의 생명보호를 위한 보호조치로서 유전자검사의 제한············ 154
3. 배아의 생명보호를 위한 최소한의 보호조치로서 유전자검사의 제한 ····························· 155
Ⅶ. 착상전 유전자진단과 평등원리 ······························· 155
1. 유전질환의 장애성 ······················································· 155
2. 차별의 유무 ··································································· 157
3. 차별의 정당성 ······························································· 158
제 3 절 유전자은행과 헌법 ············································ 161
Ⅰ. 유전자은행의 의미 ····················································· 161
Ⅱ. 유전자은행과 헌법 ····················································· 163
1. 개인정보 자기결정권 ··················································· 163
2. 사생활의 비밀 보호 ····················································· 164
3. 유전정보를 통한 차별금지 ········································· 165
4. 유전정보와 재산권 ······················································· 166
제 4 절 생명윤리위원회와 헌법 ···································· 167
Ⅰ. 현대 생명과학기술에 있어서 생명윤리위원회의 의미················· 167
Ⅱ. 윤리적 논의 시 유의사항 ······································· 168
1. 최종 척도로서 법 ························································· 168
2. 사회적 여론의 반영 ····················································· 169
3. 윤리와 도덕의 구별 ····················································· 170
Ⅲ. 윤리위원회의 기능 ····················································· 171
Ⅳ. 국가생명윤리심의위원회의 헌법적 문제 ··············· 173
1. 학문의 자유를 절차적으로 보장하는 위원회제도 · 173
2. 국가생명윤리심의위원회 구성의 문제 ····················· 175
3. 생명윤리법 개정 ··························································· 176
Ⅴ. 기관생명윤리심의위원회 ··········································· 177
1. 연구기관 내 자체적인 윤리심사 ······························· 177
2. 생명윤리법의 개정 ······················································· 178
3. 전망과 의문 ··································································· 179
제 5 절 인간복제와 헌법 ················································ 180
Ⅰ. 인간복제의 의미 ························································· 180
1. 인간복제의 개념 ··························································· 180
2. 인간복제의 종류 ··························································· 181
3. 인간복제의 활용 ··························································· 181
4. 인간복제의 방법 ··························································· 185
Ⅱ. 인간복제와 관련된 법적 상황 ································· 186
Ⅲ. 인간복제와 인간존엄 ··············································· 187
1. 창조질서에 위반 ··························································· 188
2. 인간의 도구화 ······························································· 188
3. 소위 앙상블이론(Ensembletheorie) ·························· 190
4. 모를 권리(Recht auf Nichtwissen) ························· 191
5. 인간존엄에 위반되지 않는 인간복제의 목적 ········· 193
Ⅳ. 인간복제와 생명권 ····················································· 194
1. 인간복제과정에서 생명침해의 위험 ························· 194
2. 생명침해의 극복 가능성 ············································· 195
제 6 절 생명과학기술과 관련 된 헌법재판소의 입장과
위헌심사기준 ······································································ 196
Ⅰ. 헌법재판소의 결정 ····················································· 196
1. 태아의 손해배상청구권에 관한 결정 ······················· 196
2. 생명윤리법 결정 ··························································· 197
Ⅱ. 배아의 생명권 ····························································· 199
1. 초기배아의 기본권주체성 부정과 근거 ··················· 199
2. 생명권의 시작점(기본권의 주체성)에 관한 일단락200
3. 배아의 인간존엄 인정 가능성에 대한 회의와 배아보호 가능성 축소 ······························ 201
Ⅲ. 국가의 배아에 대한 생명 보호의무 ······················· 202
1. 문제점 ············································································· 202
2. 전망 ················································································· 204
Ⅳ. 부모의 자기결정권 ····················································· 205
1. 잠정적인 배아의 부모로서 일반적 인격권 ············· 205
2. 제한의 필요성이 상대적으로 큰 자기결정권 ········· 206
3. 배아생성자의 자기결정권을 덜 침해하는 수단으로서 배아생성자의 의사존중 ·········· 207
Ⅴ. 위헌심사기준에 대한 전망 ······································· 208
1. 생명과학기술의 대상으로서 배아의 헌법적 지위 · 208
2. 약화된 국가의 생명보호의무 ····································· 209
3. 이익형량이 중요해진 과잉금지원칙 ························· 209
제 3 장 미국의 생명윤리 관련 법제 ················ 211
제 1 절 서론 ······································································ 211
제 2 절 미연방 정부의 배아줄기세포연구 규제의 변천·················· 212
Ⅰ. W. 부시대통령의 2001년 8월 9일 선언 이전의 인간 배아줄기세포연구에 관한 연방정부정책 ············ 212
1. 연방윤리자문위원회(Ethics Advisory Board, EAB)······················· 213
2. 인간배아연구패널(Human Embryo Research Panel,HERP) ································ 214
3. 국립보건원 지침 ··························································· 215
Ⅱ. 부시대통령의 2001년 8월 9일 선언 ······················· 217
1. 의의 ················································································· 217
2. 연방자금지원을 받을 수 있는 인간배아줄기세포주························· 218
3. 선언의 내용 ··································································· 218
4. 선언의 단점 ··································································· 219
Ⅲ . 오바마 대통령의 2009년 3월 9일 대통령령 ······· 220
1. 의의 ················································································· 220
2. 구체적 내용 ··································································· 221
3. 효과 ················································································· 224
제 3 절 미연방 정부의 배아줄기세포연구 규제의 분석············································ 225
Ⅰ. 규제배경 ······································································· 225
Ⅱ. 규제체제 ······································································· 229
Ⅲ. 규제내용 ······································································· 234
Ⅳ. 미국의 생명윤리자문기구의 분석 ··························· 242
1. 국가생명윤리자문위원회(1996-2001) ······················· 242
2. 윤리위원회(2001-2007) ··············································· 244
Ⅴ. 관련 법제의 분석 ······················································· 246
1. 2009년 인간복제금지법(Human Cloning Prohibition Act of 2009) ···························· 246
2. 2009년 줄기세포연구향상법(Stem Cell Research Improvement Act of 2009) ········· 246
3. 2009년 환자우선법(Patients First Act of 2009) ·· 248
4. 2009년 윤리적 줄기세포연구에 관한 조세편익법 (Ethical Stem Cell Research Tax Credit Act of 2009)-----249
제 4 절 미연방 정부의 인간복제의 논의 ···················· 250
Ⅰ. 인간복제에 대한 입법의 반응 ································· 250
1. 연방입법의 추이 ··························································· 250
2. 주입법의 추이 ······························································· 253
Ⅱ. 관련 법제의 검토 ······················································· 255
제 5 절 결론 ······································································ 258
제 4 장 독일의 생명윤리 관련 법제 ················ 261
제 1 절 윤리위원회(Deutscher Ethikrat) ···················· 264
Ⅰ. 서론 ··············································································· 264
Ⅱ. 생명윤리 관련 윤리위원회 구조 ····························· 265
1. 독일윤리위원회(Deutscher Ethikrat) ······················· 265
2. 중앙윤리위원회(Zentrale Ethik-Kommission fürStammzellforschung) ············· 269
3. 유전자진단위원회(Gendiagnostik-Kommission:GeKo) ······················ 274
Ⅲ. 시사점 ··········································································· 278
제 2 절 유전자진단법(Gendiagnostikgesetz-GenDG) 280
Ⅰ. 서론 ··············································································· 280
Ⅱ. 독일의 유전자진단법 내용 ····································· 283
1. 유전자진단법의 제정배경 ··········································· 283
2. 주요내용 ········································································· 286
3. 출생의 해명을 위한 유전적 검사 ····························· 297
4. 보험영역에서의 유전적 검사 ····································· 299
5. 근로영역에서 유전적 검사 ········································· 299
6. 유전자진단위원회의 일반적으로 인정된 지식과 기술수준 ··················· 303
Ⅲ. 연방헌법재판소의 DNA-감정서(Gutachten)판례 304
1. 친생부인 관련 배경 ····················································· 305
2. 사건개요 ········································································· 308
3. 연방헌법재판소의 결정 ··············································· 311
Ⅳ. 시사점 ········································································· 319
1. 개정 생명윤리 및 안전에 관한 법률상 유전자 진단관련 주요규정 ··········· 319
2. 개정 생명윤리 및 안전에 관한 법률 규정의 문제점 과 개선 방향을 위한 제언 ········· 324
3. 개정 생명윤리 및 안전에 관한 법률의 미비점 ····· 330
4. 유전자진단법의 제정 필요성 ····································· 333
제 3 절 연구를 위한 유전자정보은행(Humanbiobanken für Forschung)의 설립을 위한 법률(가칭)의 제정 논의··········· 334
Ⅰ. 서론 ··············································································· 334
Ⅱ. 법령상의 유전자 검사 ··············································· 336
1. 형사절차령(StPO)의 규정 및 유전정보 보관 ········ 336
2. 유전자 진단법상 유전정보 보관 ······························· 343
Ⅲ. 생체정보은행설치 논의에 대한 독일윤리위원회 (Deutscher Ethikrat)의 입장표명 ········· 344
Ⅳ. 시사점 ··········································································· 347
제 4 절 배아체세포법(Stammzellgesetz)과 배아보호법 (Embryonenschutzgesetz) ········ 351
Ⅰ. 서론 ··············································································· 351
Ⅱ. 줄기세포법 주요내용 ················································· 353
1. 법의 목적과 적용범위 ················································· 353
2. 개념규정 ········································································· 354
3. 배아체세포의 수입과 이용 ········································· 355
4. 배아체세포에 대한 연구 ············································· 356
5. 중앙윤리위원회(zentrale Ethik-kommission) ········ 357
Ⅲ. 배아보호법(Embryonenschutzgesetz) ···················· 359
Ⅳ. 시사점 ··········································································· 361
제 5 장 프랑스의 생명윤리 관련 법제 ············ 364
제 1 절 프랑스 법 고찰의 필요성 ································ 364
제 2 절 프랑스 생명윤리 관련 법제 ···························· 366
Ⅰ. 1994년 7월 1일 법률 제94-548호 - 인간의 신체와
관련된 개인정보 보호의 강화 ········································ 368
Ⅱ. 1994년 7월 29일 법률 제94-653호 - 인체의 존중 ····················· 371
Ⅲ. 1994년 7월 29일 법률 제94-654호- 인체 유래물의 이용과 기증 및 인공수정과 출산 전 검사에 관한 법률············ 375
Ⅳ. 2004년 8월 6일 1차 생명윤리법 ····························· 377
Ⅴ. 2011년 7월 7일 생명윤리법 ····································· 384
1. 건강에 관한 개인보호(유전적 특징의 조사) ·········· 387
2. 장기의 교차기증(Don croisé d'organes) ················ 388
3. 생식세포 기증의 익명성(Anonymat du don de gamète) ························ 388
4. 배아와 배아줄기세포에 관한 연구 ··························· 389
5. 인공수정(Assistance médicale à la procréation,Procréation médicalement assistée) ···· 390
6. 출생 전 진단(Diagnostic prénatal) ·························· 392
제 3 절 생명윤리에 관련된 기관 ·································· 396
Ⅰ. 국가생명보건과학윤리자문위원회 ··························· 396
1. 임무 ················································································· 397
2. 조직과 구성 ··································································· 398
3. 재정 ················································································· 400
Ⅱ. 생명의학청(Agence de la biomédecine)과 지역생명윤리센터(Espace régionaux d'éthique) ······ 403
1. 생명의학청(Agence de la biomédecine) ················· 403
2. 지역생명윤리센터(Espace régionaux d'éthique) ·· 405
제 4 절 생명윤리에 관한 프랑스 헌법재판소의 결정405
Ⅰ. 개괄 ··············································································· 405
Ⅱ. 헌법재판소 결정에 나타난 인간 존엄성의 보장 · 410
1. 인간의 존엄성 존중의 헌법적 승인 ························· 414
2. 1994년 생명윤리법 결정에서 나타난 인간의 존엄성보호원칙 ················· 414
Ⅲ. 헌법재판소 결정의 구체적 검토 ····························· 417
1. 인공임신중절에 관한 1975년 1월 15일 결정(1차 IVG결정) ············ 417
2. 인공임신중절에 관한 2001년 6월 27일 결정(2차 IVG결정) ·················· 422
3. DNA정보파일(Fichier empreintes genetiques)결정(QPC 2010-25) ···················· 428
4. 제대혈 관련 우선적 위헌심사결정(QPC 2012-249) ·············································· 453
제 5 절 생명과학기술에 관련된 기타 사항 ················ 462
Ⅰ. 인체 유래물의 기증과 이용(Don et utilisation des
produits et éléments du corps humain) ··················· 462
Ⅱ. 인간배아 줄기세포 연구(Recherches sur les
cellules souches embryonnaires humaines) ··············· 464
1. 인간배아의 법적 지위와 의의 ··································· 465
2. 인간배아에 대한 존엄성보호 ····································· 467
3. 인간배아연구의 예외적 허용 ····································· 468
4. 인공수정(Assistance Médicale à la Procréation :AMP) ······················ 470
제 6 절 시사점 ·································································· 472
제 6 장 결론 ···························································· 475
제 1 절 공통적 논의 - 줄기세포 연구 등 ················· 475
제 2 절 결론적 평가 ·······················································478