生育权基本问题探析
发布时间：2018-07-15 11:02
【摘要】： 近年来，我国关于生育权的民事纠纷层出不穷，在许多地方有关案件频繁出现，如妻子未经丈夫同意堕胎，丈夫认为其生育权被侵犯而起诉索要赔偿；在校大学生因生育被学校开除而诉至法院；死刑犯的妻子向人民法院提出申请，请求人工授精为死囚丈夫怀孩子，最终被法院驳回；等等，由此引发了有关夫妻生育权是否平等、生育权主体范围如何界定的讨论。加之2002年9月27日通过的《吉林省人口与计划生育条例》第三十条第二款规定：“达到法定婚龄决定不再结婚并无子女的妇女，可以采取合法的医学辅助生育技术手段生育一个子女。”这是全国首个以地方法规的形式明文规定未婚女子采用医学辅助生育技术手段生育子女的立法例。社会各界有关这些个案的讨论非常激烈。在这样一个权利日益被人们重视的时代，生育权作为人的一项基本权利更加频繁地被人们作为谈论的话题，好像这一权利刚刚从人们的生活中出现一样。对生育权的认识和理解，在学术界和实践中可谓是百家争鸣，众说纷纭。 2001年12月29日通过，2002年9月1日起施行的《人口与计划生育法》第十七条规定：“公民有生育的权利，也有依法实行计划生育的义务，夫妻双方在实行计划生育中负有共同的责任。”该规定首次以法律的形式明确了公民的生育权。这一法律的出台使一些人误认为它是第一次明确提出了男子也具有生育权。其实，《宪法》早在第四十九条第二款中规定：“夫妻双方有实行计划生育的义务”。这一条款虽然只强调了夫妻的计划生育义务，但根据权利义务对等原则，其已暗含着男女双方都享有生育权。1992年10月1日起施行的《妇女权益保障法》第四十七条规定：“妇女有按照国家有关规定生育子女的权利，也有不生育的自由。”这一条款是出于更多地保护弱势主体妇女的权利而制定的。因为从生理的角度看，从怀孕到生产至抚育的过程中，妇女都承受巨大的压力和责任。笔者认为当夫妻双方的生育权因行使发生冲突时，应优先保护女性的生育权。 从古至今，在人类发展的历史长河中，生育做为人类繁衍后代、延续种族的重要方式一直伴随其左右。其发展经历了三大阶段：自然生育阶段、生育义务阶段、生育权利阶段。后来生育权由自由行使演变到权利被限制阶段。在当前世界人口大爆炸的时代，限制生育，控制人口是许多国家减轻发展负担的重要任务。生育权利被限制势在必然。 自20世纪中下叶，生育权逐渐为国际社会所接受。在英美国家判例中，法官以判决的方式从不同角度确认了生育权，同时，其内涵亦在不断发展。1968年联合国在德黑兰召开的世界人权会议通过的《德黑兰宣言》宣布：“父母享有自由负责地决定子女人数及其出生间隔的基本人权”；1974年联合国在布加勒斯特召开的世界人口会议通过的《世界人口行动计划》将生育权定义为：“所有夫妇和个人都享有自由负责地决定其子女的数量和间隔以及为此目的而获得信息、教育与方法的基本权利”。此外，联合国大会1980年3月1日开放签字的《消除对妇女一切形式的歧视公约》第16条第1款第(e)项也有类似的规定；联合国1984年国际人口与发展会议通过的《墨西哥城宣言》和1994年召开的国际人口与发展会议通过的《国际人口与发展会议行动纲领》，都将生育权作为基本人权作了阐述。美国1942年的“斯金那诉俄克拉荷马”案后来被视为确认生育权利的里程碑。其实，国外关于生育权的规定有两方面：其一，生育权的内容包含了责任和义务。其二，关于生育权的主体，虽然不限于缔结了婚姻关系的夫妻，但也不是任何具有生育能力的人。 对于生育权的行使，笔者从生育权行使的特点、行使的限制条件出发，对生育权行使的类型和实现方式进行了论述。笔者认为生育权行使的特点主要体现为四个方面，即主体的普遍性、内容的发展性、行使的限制性和行使的伦理性。生育权行使的限制条件主要有自然条件的限制、生命健康权的限制、生育权之间的限制和社会公益的限制。生育权行使的类型包括婚内生育权的行使和非婚生育权的行使。随着社会文明的进步，生育权的实现方式在传统的自然生育基础上增加了人工生育方式，而且它对现代婚姻家庭的影响越来越大。自1978年世界上第一个试管婴儿在美国诞生以来，，现代医疗技术手段切断了生育与性行为的纽带，家庭模式正在趋向多元化。法国规定有生育能力的妇女和单身妇女禁止使用人工授精；而英国较为宽松，允许单身妇女使用。当我们转向各种各样的无性人工生殖技术时(包括人工授精、代孕、克隆人)，生育自由的问题就变得更加复杂了。这些革新技术可以使单身者、同性恋者、婚外恋者及不育症者均可组建家庭。在传统伦理受到挑战的同时，亦在不断寻找探讨一个问题：是否有一种肯定性的生育权?生殖技术不断被科技进步所打破，一些人工生殖技术如人工授精也从被禁止逐步走向开放，由此看来，人类的生殖方式会走向何方呢?笔者对此有所思考。 目前侵害夫妻生育权来自两个方面：(1)外部侵权，指夫妻以外的第三人或社会实施干扰、妨害、侵犯生育权的行为。(2)内部侵权，指来自配偶间的侵害，包括强迫生育、强迫堕胎、拒绝生育、擅自堕胎。法律上的权利必定伴随着相应的救济方式，使权利在受到侵害时得以诉诸公力寻求保护，这种公力的实现不仅要靠程序法来保证，更为重要的是要靠实体法中侵权条款的规定来使责任人承担责任。《民法通则》和《婚姻法》对于这些侵权行为，规定了受害方的救济措施：第一，请求离婚。第二，离婚时请求损害赔偿。笔者建议对于侵犯生育权的救济措施是否可以不以离婚作为请求损害赔偿的先决条件。因为有的家庭不想因家庭破裂、夫妻离异给孩子带来不良的影响，在维持家庭的情况下，或许庭外调解是一个不错的救济方式。 鉴于生育权行使和侵权中所存在的法律问题以及理论上的困惑，本文试图通过分析提出完善生育权立法的办法和途径：生育权主体扩大；权利内容涵盖面更广；重新审视夫妻生育权平等问题；传统生育方式应随着科技的进步而改变；对夫妻生育权纠纷的解决机制提出建议。“导之以德、齐之以法”，生育权的规定和运用是婚姻家庭稳定与否的一项重要因素。
[Abstract]:In recent years, civil disputes about the right to birth have come out in an endless stream in China. In many places, the cases appear frequently, such as the wife without the husband's consent to abortion, the husband thinks that the child's birth right is violated and the prosecution asks for compensation; the college student is expelled to the court for being expelled by the school because of the child's birth; the wife of the death penalty makes an application to the people's court. Artificial insemination was rejected by the husband of the prisoner of death, and finally was rejected by the court; and so on, it triggered a discussion about the equality of the husband and wife and the definition of the subject range of the birth right. In addition, the "Jilin province population and family planning regulations", which was adopted in September 27, 2002, stipulates that the thirtieth article of the second paragraph of the population and Family Planning Ordinance: "to reach the legal age of marriage is not to be married." Women who have no children can adopt legal medical assisted reproductive technology to have a child. "This is the first legislation in the country to give birth to children by means of medical assisted reproductive technology in the form of local laws and regulations. The discussion of these cases is very intense. The birth right, as a basic right of human being, is more frequently talked about as a basic right of people. It seems that this right has just appeared in people's life. The understanding and understanding of the right to birth is contending in academic circles and practice.
In December 29, 2001, the seventeenth article of the population and family planning law, which was implemented in September 1, 2002, stipulated that "citizens have the right to have childbearing and also have the obligation to carry out family planning according to law. Both husband and wife have a common responsibility in the implementation of family planning." this provision is the first way to clarify the rights of citizens in the form of law. The introduction of the law made some people mistakenly think that it was the first time that men also had the right to give birth. In fact, the Constitution stipulates in the forty-ninth second paragraphs: "both husband and wife have the obligation to carry out family planning." this clause, although only emphasizes the family planning obligation of the husband and wife, has been implied in accordance with the principle of reciprocity of rights and obligations. The forty-seventh article on the protection of women's rights and interests, which was enacted by both men and women in October 1st.1992, stipulated that "women have the right to have children in accordance with the relevant provisions of the state, and also have freedom of childbearing." this article is made out of more protection of the rights of women in disadvantaged subjects. From pregnancy to production to nurture, women are under great pressure and responsibility. I think the right to protect women should be given priority when the rights of the husband and wife are in conflict with the exercise.
From ancient times to the present, in the history of human development, fertility has been accompanied by the important way of reproduction of human beings, and the important way to continue race has been accompanied by it. Its development has experienced three stages: the stage of natural birth, the stage of childbearing obligation, the stage of reproductive rights. In the era of the big bang, limiting fertility and controlling population are important tasks for many countries to lighten the burden of development.
In the middle and lower parts of the twentieth Century, the birth right has gradually been accepted by the international community. In the case of the British and American countries, the judge confirmed the right of birth from different angles in the way of judgment, and its connotation was also continuously developed in the "Tehran declaration" adopted by the World Conference on human rights held in Tehran in the.1968: "the parents enjoy the free and responsible place." The basic human rights to determine the number of children and their intervals; "the world population action plan, adopted by the United Nations Conference in Bucharest in 1974, to define the right to birth as:" all couples and individuals enjoy the free and responsible decision to determine the number and interval of their children and to obtain information for this purpose. In addition, the sixteenth articles (E) of the Convention on the elimination of all forms of discrimination against women, which was opened by the United Nations General Assembly in March 1, 1980, also have similar provisions; the Mexico City declaration and the International Conference on population and development, adopted by the United Nations Conference on international population and development in 1984, and the International Conference on population and Development held in 1994 The programme of action of the International Conference on population and development describes the right of birth as a basic human right. In 1942, the case of "the Russian klahoma" in the United States was later regarded as a milestone in the confirmation of the right to birth. In fact, there are two aspects of the provisions on the right of birth in foreign countries: first, the content of the right to birth control contains responsibilities and obligations. The subject of reproductive rights, though not limited to couples who have married, is not a fertile person.
On the basis of the exercise of reproductive rights, the author, from the characteristics of the exercise of the right to bear the right to exercise, expounds the types and ways of realizing the exercise of the right to bear the birth right. The author believes that the characteristics of the exercise of reproductive rights are mainly embodied in four aspects, namely, the universality of the subject, the development of the content, the restriction of the exercise and the ethical nature of the exercise. The limitations of the exercise are mainly natural conditions, the restriction of the right to life, the restriction of the right of reproduction and the restriction of social public welfare. The types of the exercise of reproductive rights include the exercise of the right of childbearing in marriage and the exercise of the right of non marriage birth. With the progress of social civilization, the realization of the right of reproduction is increased on the basis of the traditional natural birth. Since the first test tube baby in the world has been born in the United States in 1978, modern medical technology has cut off the ties of birth and sex, and the family pattern is becoming pluralistic. Insemination, while the UK is more relaxed and allows single women to use. When we turn to all kinds of artificial reproductive techniques (including artificial insemination, surrogate, cloned human), the problem of birth freedom becomes more complicated. These innovative techniques can make a family of singles, homosexuals, extramarital love and infertility. At the same time, the traditional ethics is being challenged to explore a question: is there a positive reproductive right? Reproductive technology has been constantly broken by scientific and technological progress, and some artificial reproductive technologies, such as artificial insemination, have been gradually forbidden to open. Reflection.
At present, the right to infringe husband and wife's reproductive rights come from two aspects: (1) external tort, which refers to the third person or the society outside the husband or wife, interfering with, interfering, and violating the right to birth. (2) internal infringement, refers to infringement between spouses, including forced birth, forced abortion, refusal of childbirth, and unauthorized abortion. The legal rights must accompany the corresponding relief party. In order to make the right to resort to public power to seek protection when infringed, the realization of this kind of public power is not only guaranteed by procedural law, but also to the responsibility of the responsible person. The general principles of the civil law and the law of marriage stipulate the relief measures of the injured party: first, please Ask for divorce. Second, ask for damages when divorce. I suggest that the remedy for the violation of the right of birth can not be taken as a prerequisite for the claim for damages. Because some families do not want to break the family, the divorced husband and wife have a bad influence on the child. In the case of maintaining the family, perhaps the outside court mediation is a no one. The wrong way of remedies.
In view of the legal problems and theoretical puzzles in the exercise and infringement of the right to bear the birth right, this article attempts to analyze the ways and means to improve the legislation of the birth right by analyzing the enlargement of the body of reproductive rights, the wider scope of the content of the rights, and the reexamination of the equality of the right of birth of the husband and wife; the mode of birth control should be changed with the progress of science and technology. Change; propose a proposal for the settlement mechanism of the marital rights dispute. "Guide it by virtue and the law of Qi". The provisions and application of the reproductive rights are an important factor in the stability of marriage and family.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.1
本文编号：2123853
[Abstract]:In recent years, civil disputes about the right to birth have come out in an endless stream in China. In many places, the cases appear frequently, such as the wife without the husband's consent to abortion, the husband thinks that the child's birth right is violated and the prosecution asks for compensation; the college student is expelled to the court for being expelled by the school because of the child's birth; the wife of the death penalty makes an application to the people's court. Artificial insemination was rejected by the husband of the prisoner of death, and finally was rejected by the court; and so on, it triggered a discussion about the equality of the husband and wife and the definition of the subject range of the birth right. In addition, the "Jilin province population and family planning regulations", which was adopted in September 27, 2002, stipulates that the thirtieth article of the second paragraph of the population and Family Planning Ordinance: "to reach the legal age of marriage is not to be married." Women who have no children can adopt legal medical assisted reproductive technology to have a child. "This is the first legislation in the country to give birth to children by means of medical assisted reproductive technology in the form of local laws and regulations. The discussion of these cases is very intense. The birth right, as a basic right of human being, is more frequently talked about as a basic right of people. It seems that this right has just appeared in people's life. The understanding and understanding of the right to birth is contending in academic circles and practice.
In December 29, 2001, the seventeenth article of the population and family planning law, which was implemented in September 1, 2002, stipulated that "citizens have the right to have childbearing and also have the obligation to carry out family planning according to law. Both husband and wife have a common responsibility in the implementation of family planning." this provision is the first way to clarify the rights of citizens in the form of law. The introduction of the law made some people mistakenly think that it was the first time that men also had the right to give birth. In fact, the Constitution stipulates in the forty-ninth second paragraphs: "both husband and wife have the obligation to carry out family planning." this clause, although only emphasizes the family planning obligation of the husband and wife, has been implied in accordance with the principle of reciprocity of rights and obligations. The forty-seventh article on the protection of women's rights and interests, which was enacted by both men and women in October 1st.1992, stipulated that "women have the right to have children in accordance with the relevant provisions of the state, and also have freedom of childbearing." this article is made out of more protection of the rights of women in disadvantaged subjects. From pregnancy to production to nurture, women are under great pressure and responsibility. I think the right to protect women should be given priority when the rights of the husband and wife are in conflict with the exercise.
From ancient times to the present, in the history of human development, fertility has been accompanied by the important way of reproduction of human beings, and the important way to continue race has been accompanied by it. Its development has experienced three stages: the stage of natural birth, the stage of childbearing obligation, the stage of reproductive rights. In the era of the big bang, limiting fertility and controlling population are important tasks for many countries to lighten the burden of development.
In the middle and lower parts of the twentieth Century, the birth right has gradually been accepted by the international community. In the case of the British and American countries, the judge confirmed the right of birth from different angles in the way of judgment, and its connotation was also continuously developed in the "Tehran declaration" adopted by the World Conference on human rights held in Tehran in the.1968: "the parents enjoy the free and responsible place." The basic human rights to determine the number of children and their intervals; "the world population action plan, adopted by the United Nations Conference in Bucharest in 1974, to define the right to birth as:" all couples and individuals enjoy the free and responsible decision to determine the number and interval of their children and to obtain information for this purpose. In addition, the sixteenth articles (E) of the Convention on the elimination of all forms of discrimination against women, which was opened by the United Nations General Assembly in March 1, 1980, also have similar provisions; the Mexico City declaration and the International Conference on population and development, adopted by the United Nations Conference on international population and development in 1984, and the International Conference on population and Development held in 1994 The programme of action of the International Conference on population and development describes the right of birth as a basic human right. In 1942, the case of "the Russian klahoma" in the United States was later regarded as a milestone in the confirmation of the right to birth. In fact, there are two aspects of the provisions on the right of birth in foreign countries: first, the content of the right to birth control contains responsibilities and obligations. The subject of reproductive rights, though not limited to couples who have married, is not a fertile person.
On the basis of the exercise of reproductive rights, the author, from the characteristics of the exercise of the right to bear the right to exercise, expounds the types and ways of realizing the exercise of the right to bear the birth right. The author believes that the characteristics of the exercise of reproductive rights are mainly embodied in four aspects, namely, the universality of the subject, the development of the content, the restriction of the exercise and the ethical nature of the exercise. The limitations of the exercise are mainly natural conditions, the restriction of the right to life, the restriction of the right of reproduction and the restriction of social public welfare. The types of the exercise of reproductive rights include the exercise of the right of childbearing in marriage and the exercise of the right of non marriage birth. With the progress of social civilization, the realization of the right of reproduction is increased on the basis of the traditional natural birth. Since the first test tube baby in the world has been born in the United States in 1978, modern medical technology has cut off the ties of birth and sex, and the family pattern is becoming pluralistic. Insemination, while the UK is more relaxed and allows single women to use. When we turn to all kinds of artificial reproductive techniques (including artificial insemination, surrogate, cloned human), the problem of birth freedom becomes more complicated. These innovative techniques can make a family of singles, homosexuals, extramarital love and infertility. At the same time, the traditional ethics is being challenged to explore a question: is there a positive reproductive right? Reproductive technology has been constantly broken by scientific and technological progress, and some artificial reproductive technologies, such as artificial insemination, have been gradually forbidden to open. Reflection.
At present, the right to infringe husband and wife's reproductive rights come from two aspects: (1) external tort, which refers to the third person or the society outside the husband or wife, interfering with, interfering, and violating the right to birth. (2) internal infringement, refers to infringement between spouses, including forced birth, forced abortion, refusal of childbirth, and unauthorized abortion. The legal rights must accompany the corresponding relief party. In order to make the right to resort to public power to seek protection when infringed, the realization of this kind of public power is not only guaranteed by procedural law, but also to the responsibility of the responsible person. The general principles of the civil law and the law of marriage stipulate the relief measures of the injured party: first, please Ask for divorce. Second, ask for damages when divorce. I suggest that the remedy for the violation of the right of birth can not be taken as a prerequisite for the claim for damages. Because some families do not want to break the family, the divorced husband and wife have a bad influence on the child. In the case of maintaining the family, perhaps the outside court mediation is a no one. The wrong way of remedies.
In view of the legal problems and theoretical puzzles in the exercise and infringement of the right to bear the birth right, this article attempts to analyze the ways and means to improve the legislation of the birth right by analyzing the enlargement of the body of reproductive rights, the wider scope of the content of the rights, and the reexamination of the equality of the right of birth of the husband and wife; the mode of birth control should be changed with the progress of science and technology. Change; propose a proposal for the settlement mechanism of the marital rights dispute. "Guide it by virtue and the law of Qi". The provisions and application of the reproductive rights are an important factor in the stability of marriage and family.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.1
【引证文献】
相关硕士学位论文 前5条
1 马姗;生育权研究[D];大连海事大学;2010年
2 刘浩天;夫妻生育权研究[D];西南政法大学;2010年
3 田代飞;孕期保健合同研究[D];南华大学;2011年
4 龚苑;生育权基本问题研究[D];南昌大学;2008年
5 史彦;特殊主体生育权研究[D];吉林大学;2010年
本文编号：2123853
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