代孕父母子女关系的法律规制研究
发布时间：2019-06-04 16:56
【摘要】： 代孕技术的诞生以及在医疗临床实践中的应用，极大地冲击了传统的自然生殖方式及其所形成的一系列社会伦理观念和法律制度。我国卫生部考虑到代孕可能产生的诸多问题，通过颁布《人类辅助生殖技术管理办法》禁止医疗机构和医务人员使用代孕技术，但是卫生部的规定作为部门规章并没有很好地解决一系列的后续问题。随着代孕事件的时有发生，如何规制代孕父母子女关系这样的问题摆在了我们面前。依据我国现行法显然不能解决这样的问题。如果发生代孕纠纷，则会产生无法可依的情况。面对我国婚姻法对代孕所生子女的法律地位的无所适从，我国的立法有必要做出调整以适应人工生殖技术所带来的挑战。国外代孕的规范模式大致可以分为三种：1、禁止模式，在这种模式下如果从事代孕的话，当事人可能受到处罚；2、收养模式，在这种模式下法律虽然不禁止代孕，但是也不鼓励，因此代孕母依然是法律上的母亲，委托人要想成为父母必须符合收养的各项条件和程序，才能成为父母；3、合同模式，在这种模式下法律尊重当事人的合同约定，让委托人可以根据合同成为孩子的父母，所以虽然法律可能基于保护代孕母或孩子，会真对当事人的合同有一些限制，但是介入的程度比较低。代孕父母子女关系的规制有四种学说，“分娩说”最大的缺点在于孩子的亲权归属会因为代孕母或委托夫妻的违约而变得不确定；“血缘说”对不同的代孕方式产下的子女，采用不同的原则，所以不应采纳；“子女的最佳利益说”主张由法院以子女的最佳利益认定代孕所生子女的法律上的父母，所以子女的最佳利益的认定标准非常的不确定；“合同说”直接视委托夫妻为代孕所生子女的法律上的父母，不仅尊重代孕母以及委托夫妻的意愿，并且使孩子的身份明确、安定，显然是符合孩子的最佳利益的表现，，应该予以采纳。所以本文试图在说明代孕的合法性的基础上以合同模式规制代孕母子女关系，从而能够保障各方利益。
[Abstract]:The birth of surrogacy technology and its application in medical clinical practice have greatly impacted on the traditional natural reproduction mode and a series of social ethics and legal systems formed by it. Taking into account the many problems that may arise from surrogacy, the Ministry of Health of our country has banned the use of surrogacy technology by medical institutions and medical personnel through the promulgation of the measures for the Administration of Human assisted Reproductive Technology, However, the regulations of the Ministry of Health, as departmental regulations, have not solved a series of follow-up problems. With the occurrence of surrogacy, how to regulate the relationship between surrogacy parents and children is in front of us. It is clear that such a problem can not be solved according to the current law of our country. If surrogacy disputes occur, there will be situations that cannot be relied upon. In the face of the fact that the marriage law of our country is at a loss as to the legal status of the children born in surrogacy, it is necessary for the legislation of our country to make adjustments to meet the challenges brought about by artificial reproductive technology. The normative mode of surrogacy in foreign countries can be roughly divided into three types: 1, prohibition mode, in which the parties may be punished if they engage in surrogacy; 2. Adoption mode, in which surrogacy is not prohibited by law, but is not encouraged, so surrogate mothers are still legal mothers, and clients must meet the conditions and procedures of adoption in order to become parents. 3. The contract model, in which the law respects the contractual agreement of the parties, so that the principal can become the parent of the child according to the contract, so although the law may be based on the protection of surrogate mothers or children, There are some restrictions on the contract of the parties, but the degree of intervention is relatively low. There are four theories about the regulation of the relationship between surrogacy parents and children. The biggest drawback of "delivery theory" is that the parental ownership of the child will become uncertain because of the breach of contract by the surrogate mother or the commissioned husband and wife. "consanguinity theory" adopts different principles for children born in different ways of surrogacy, so it should not be adopted. The theory of "best interests of children" advocates that the legal parents of children born in surrogacy should be recognized by the court in the best interests of their children, so the criteria for determining the best interests of children are very uncertain. The legal parents who directly regard the entrusted husband and wife as surrogacy not only respect the wishes of the surrogate mother and the entrusted husband and wife, but also make the child's identity clear and stable, which is clearly in the best interests of the child. It should be adopted. Therefore, on the basis of explaining the legitimacy of surrogacy, this paper tries to regulate the relationship between surrogacy mothers and children by contract mode, so as to protect the interests of all parties.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.16;D923
本文编号：2492858
[Abstract]:The birth of surrogacy technology and its application in medical clinical practice have greatly impacted on the traditional natural reproduction mode and a series of social ethics and legal systems formed by it. Taking into account the many problems that may arise from surrogacy, the Ministry of Health of our country has banned the use of surrogacy technology by medical institutions and medical personnel through the promulgation of the measures for the Administration of Human assisted Reproductive Technology, However, the regulations of the Ministry of Health, as departmental regulations, have not solved a series of follow-up problems. With the occurrence of surrogacy, how to regulate the relationship between surrogacy parents and children is in front of us. It is clear that such a problem can not be solved according to the current law of our country. If surrogacy disputes occur, there will be situations that cannot be relied upon. In the face of the fact that the marriage law of our country is at a loss as to the legal status of the children born in surrogacy, it is necessary for the legislation of our country to make adjustments to meet the challenges brought about by artificial reproductive technology. The normative mode of surrogacy in foreign countries can be roughly divided into three types: 1, prohibition mode, in which the parties may be punished if they engage in surrogacy; 2. Adoption mode, in which surrogacy is not prohibited by law, but is not encouraged, so surrogate mothers are still legal mothers, and clients must meet the conditions and procedures of adoption in order to become parents. 3. The contract model, in which the law respects the contractual agreement of the parties, so that the principal can become the parent of the child according to the contract, so although the law may be based on the protection of surrogate mothers or children, There are some restrictions on the contract of the parties, but the degree of intervention is relatively low. There are four theories about the regulation of the relationship between surrogacy parents and children. The biggest drawback of "delivery theory" is that the parental ownership of the child will become uncertain because of the breach of contract by the surrogate mother or the commissioned husband and wife. "consanguinity theory" adopts different principles for children born in different ways of surrogacy, so it should not be adopted. The theory of "best interests of children" advocates that the legal parents of children born in surrogacy should be recognized by the court in the best interests of their children, so the criteria for determining the best interests of children are very uncertain. The legal parents who directly regard the entrusted husband and wife as surrogacy not only respect the wishes of the surrogate mother and the entrusted husband and wife, but also make the child's identity clear and stable, which is clearly in the best interests of the child. It should be adopted. Therefore, on the basis of explaining the legitimacy of surrogacy, this paper tries to regulate the relationship between surrogacy mothers and children by contract mode, so as to protect the interests of all parties.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.16;D923
【引证文献】
相关期刊论文 前1条
1 陈少春;冯泽永;朱颖懿;杨轶君;;代孕中的公正[J];中国卫生事业管理;2011年03期
相关硕士学位论文 前8条
1 胡梯;论代孕的合理使用和法律调控原则[D];中国政法大学;2010年
2 王彪;伦理和法理视角下的代孕问题研究[D];吉林大学;2011年
3 孟会卿;代孕生育的法律规制[D];宁波大学;2010年
4 解涵;代孕行为法律规制研究[D];黑龙江大学;2011年
5 韦小敏;由“借腹生子”相关案例引发的若干法律问题分析[D];兰州大学;2010年
6 郑雪;论代孕的合法化与制度构建[D];吉林大学;2012年
7 李娜;我国代孕之亲子关系研究[D];中央民族大学;2012年
8 曹丽萍;代孕法律问题研究[D];湖南大学;2012年
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