17.Case on the constitutionality of provisions of the Single－Parent Family Support Act prohibiting adoption agency from operating ‘unmarried mother and child family welfare facility for supporting basic needs’

[26-1(B) KCCR 378, 2011Hun-Ma363, May 29, 2014]

In this case, the Constitutional Court held that Article 20 Section 4, etc. of the Single－Parent Family Support Act that prohibits an adoption agency from operating a single parent family welfare facility infringe upon neither the freedom to operate social welfare corporation nor the right to equality.

Background of the Case

(1) Complainants are social welfare corporations that operate both adoption agencies and ‘unmarried mother and child family welfare facilities for supporting basic needs’ of unmarried mothers before and after delivery as well as their babies.

(2) Due to the amendment of the Single-Parent Family Support Act on April 12, 2011, no adoption agency could simultaneously operate ‘unmarried mother and child family welfare facilities for supporting basic needs’(Article 20 Section 4) and those who had been operating adoption agencies and the aforementioned welfare facilities at the same time should change such welfare facilities into other kinds of unmarried mother and child family welfare facilities or close them down by June 30, 2015(Article 2 Section 3 of the Addenda to the Act).

(3) Upon this, the complainants filed this constitutional complaint on July 8, 2011, claiming that Article 20 Section 4 of the Single-Parent Family Support Act and Article 2 Section 3 of the Addenda to the Act infringe upon their fundamental rights.

Provisions at Issue

The subject matter of this case is whether Article 20 Section 4 of the Single-Parent Family Support Act (amended by Act No. 10582, April 12, 2011) and Article 2 Section 3 of the Addenda to the Act(hereinafter the “Instant Provisions”) infringe on the constitutional rights of thecomplainants and thereby violate the Constitution. The provisions at issue in this case are as follows:

Single-Parent Family Support Act (amended by Act No. 10582, April 12, 2011)

Article 20 (Establishment of Single-Parents Family Welfare Facilities) (4) those who operate adoption agencies pursuant to Article 10 of the ‘Special Act Relating to the Promotion and Procedure of Adoption’ shall not establish and operate facilities stipulated in Article 19 Section 1 Item 3(Ka).

Addenda to the Single-Parent Family Support Act (Act No. 10582, April 12, 2011)

Article 2 (Transitional Measures for Single－Parent Family Welfare Facilities) (3) any adoption agency in operation pursuant to Article 10 of the ‘Special Act Relating to the Promotion and Procedure of Adoption’ which also operates any welfare facility pursuant to amended Article 19 Section 1 Item 3(Ka) at the time when amended Article 19 enters into force shall chance such a facility into any one of the unmarried mother and child family welfare facilities stipulated in amended Article 19 Section 1 Item 1, Item 2, Item 3(Na) and Item 5 or close such a facility down by June 30, 2015.

Summary of the Decision

1. Whether the Instant Provisions infringe upon the freedom to operate social welfare corporation

The restriction on the freedom to operate social welfare corporation should conform to the rule against excessive restriction. But, since the State, which is responsible for promoting social security and welfare under Article 34 Section 2 of the Constitution, directly and indirectly supports social welfare corporations by providing financial support for their operation and tax benefits, the legislature can impose broader restriction and control on the operation of social welfare corporationswhile acknowledging their autonomy as well (see 2004Hun-Ba10, February3, 2005).

In principle, it is desirable for unmarried mothers and their children to live together and Article 36 Section 2 also provides that “the State shallendeavor to protect mothers.” Therefore, the Instant Provisions’ prohibitionagainst the multiple operation of both adoption agency and ‘unmarried mother and child family welfare facility for supporting basic needs,’ which is intended to practically guarantee unmarried mothers’ right to child custody and prevent an adoption agency from making a wrongful suggestion or offer to unmarried mothers to put their children up for adoption, is legitimate in terms of the legislative purposes. Also the means to achieve such purposes are reasonable.

The Instant Provisions simply prohibit adoption agencies from simultaneously operating ‘unmarried mother and child family welfare facilities for supporting basic needs,’ and therefore, the complainants are still able to run other five types of single parent family welfare facilities except the aforementioned type of facility. Also the Instant Provisions, in consideration of the adoption agencies’ situation, provide for four year grace period to help adoption agencies change existing ‘unmarried mother and child family welfare facilities for supporting basic needs’ into other types of single parent family welfare facilities. Meanwhile, the

public interests to help unmarried mothers to prepare themselves for independently raising their own children and to decrease the number of adoptions, especially overseas adoptions, achieved by preventing adoption agencies with a strong propensity to recommend adoptions fromoperating ‘unmarried mother and child family welfare facilities forsupporting basic needs,’ are important. In this regard, the Instant Provisionssatisfy the least restrictive means requirement and strike the balance between legal interests.

Therefore, the Instant Provisions do not infringe on the complainants’ freedom to operate social welfare corporation, in violation of the rule against excessive restriction.

2. Whether the Instant Provisions infringe on the right to equality

Since the issue as to allowing an adoption agency to simultaneously operate an unmarried mother and child family welfare facility for supporting basic needs is not related to a case where the Constitution specifically calls for equality or grave restriction on fundamental rights by unequal treatment are expected, it is proper to review this case on the basis of the principle against arbitrariness (see 2011Hun-Ma782 etc., September 26, 2013).

The simultaneous operation of both adoption agency and unmarried mother and child family welfare facility for supporting basic needs can induce unmarried mothers to opt for adoption instead of raising theirchildren by themselves, which is economically and socially more burdensome than adoption. In practice, it is proven that unmarried mothers who gave birth to their babies at unmarried mother and child family welfare facilities operated by adoption agencies choose more adoptions than other unmarried mothers. Given this situation, theprohibition imposed by the Instant Provisions to prevent adoption agencies from unduly recommending adoption to unmarried mothers is reasonable and therefore, the Instant Provisions do not infringe on the right to equality.

Summary of the Dissenting Opinion by Four Justices

1. Whether the Instant Provisions infringe upon the freedom to operate social welfare corporation

Considering the facts that the complaints have accumulated professional infrastructure and knowhow in child adoption and unmarried mother and child protection for a long time and take up 80% of domestic adoption and 50% of the ‘unmarried mother and child family welfare facilities for supporting basic needs,’ prohibition against multiple operation of such facilities can bring about huge vacuum in adoption and unmarried mother and child protection.

Since the Instant Provisions seem to be legislated based on the prejudices against adoption, especially international adoption, and the reference and date that served as the premise for the legislative purposesof the Instant Provision are based on very limited statistics, the legitimacyof the legislative purposes is questionable. Also, as unmarried mothers’ decision to place their children up for international adoption is actuallybased on social prejudice, stigma and lack of financial support, prohibitingan adoption agency from simultaneously operating ‘unmarried mother and child family welfare facilities for supporting basic needs’ cannot be a solution to the problem. Therefore, the means to achieve the legislative purpose does not seem reasonable.

The current Special Act on Adoption and the Single-Parent Family Support Act provides various support and restrictions to get rid of social prejudice against unmarried mother and child family, which is the very source of the problem, and extends financial support. Furthermore, it is possible to find a way to prevent an adoption agency from inappropriately recommending adoption through strict supervision and oversight by theState. In this regards, the aforementioned prohibition against the simultaneousoperation of both an adoption agency and a ‘unmarried mother and child family welfare facility for supporting basic needs’ fails to meet the least restrictive means requirement and to strike the balance between legal

interests.

Therefore, the Instant Provisions infringe on the complainants’ ‘freedomto operate social welfare corporation,’ violating the rule against excessive restriction.

2. Whether the Instant Provisions infringe upon the right to equality

The policy to encourage unwed mothers to raise their own children and to decrease the rate of international adoption can be achieved by creating social environment in which unwed mothers can raise their children on their own and lead self-supporting lives, not by imposing strict restriction against an adoption agency to operate ‘unmarried mother and child family welfare facilities for supporting basic needs.’

Therefore, the discrimination by the Instant Provisions between social welfare corporations that do not operate adoption agencies and those that operate such agencies in terms of the operation of ‘unmarried mother and child family welfare facilities for supporting basic needs’ are unreasonable. For the forgoing reasons, the Instant Provisions infringe upon the right to equality.