罗某、谢某诉陈某监护权纠纷案评析
发布时间：2018-11-02 18:09
【摘要】：随着人工辅助生育技术的出现,传统家庭法中关于亲子关系认定以及监护权归属的规则受到挑战。我国法律禁止代孕行为,但代孕行为的违法性并不影响民法上对亲子关系以及监护权的认定。样本案例中,两个孩子系被告与其夫通过非法代孕方式所生,原告作为两个孩子的祖父母在其子病故后,以被告与孩子没有血缘关系为由,向法院申请由其担任两个孩子的监护权人。本案涉及的主要问题是在被告与两个孩子没有自然血亲的情况下,能否形成拟制血亲,即被告能否与两个孩子形成养父母子女关系或有抚养关系的继父母子女关系。我国民法上亲子关系认定采取“分娩为母”原则,因此被告不是分娩者不能认定为两个孩子的亲生母亲。我国收养法将收养登记规定为收养的有效要件,欠缺法定形式要件的收养行为无效。在本案中,陈某不具有收养的要式法律行为,不构成收养法律关系。两个孩子属于缔结婚姻关系后夫妻一方的非婚生子女。两个孩子出生后与被告共同生活五年,被告履行了作为一名母亲对孩子的抚养、保护、教育、照顾等诸项义务,故应认定双方之间已形成有抚养关系的继父母子女关系。此外,根据未成年人利益最大化原则,两个孩子跟随被告更有利于其健康成长。所以,本案中应当由被告陈某取得两个孩子的监护权。
[Abstract]:With the emergence of artificial assisted reproductive technology, the rules of paternity and custody in traditional family law are challenged. Surrogacy is prohibited by law in our country, but the illegality of surrogacy does not affect the recognition of paternity and custody in civil law. In the sample case, two children were born by the defendant and her husband through illegal surrogacy. The plaintiff, as the grandparent of the two children, after the death of his son, argued that the defendant and the child were not related by blood. Apply to the court for custody of two children. The main issue involved in the present case is whether the defendant can form a hypothetical kinship when the accused and the two children do not have natural blood relatives, that is, whether the defendant can form a parent-child relationship with the two children or a stepparent relationship with the two children. The principle of motherhood is adopted in the determination of parent-child relationship in China's civil law, so the defendant is not the mother of two children. The adoption law of our country prescribes the adoption registration as the effective element of adoption, and the adoption that lacks the legal form element is invalid. In this case, Chen does not have the legal act of adoption, does not constitute the legal relationship of adoption. Two children are children born out of wedlock of one of the spouses. After the two children were born, they lived with the defendant for five years, and the defendant fulfilled the obligations of raising, protecting, educating and caring for the child as a mother, so it should be considered that the stepparent relationship has formed between the two sides. In addition, according to the principle of maximization of the interests of minors, it is more beneficial for two children to follow the defendant. Therefore, in this case should be the defendant Chen to obtain custody of two children.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9;D920.5
本文编号：2306558
[Abstract]:With the emergence of artificial assisted reproductive technology, the rules of paternity and custody in traditional family law are challenged. Surrogacy is prohibited by law in our country, but the illegality of surrogacy does not affect the recognition of paternity and custody in civil law. In the sample case, two children were born by the defendant and her husband through illegal surrogacy. The plaintiff, as the grandparent of the two children, after the death of his son, argued that the defendant and the child were not related by blood. Apply to the court for custody of two children. The main issue involved in the present case is whether the defendant can form a hypothetical kinship when the accused and the two children do not have natural blood relatives, that is, whether the defendant can form a parent-child relationship with the two children or a stepparent relationship with the two children. The principle of motherhood is adopted in the determination of parent-child relationship in China's civil law, so the defendant is not the mother of two children. The adoption law of our country prescribes the adoption registration as the effective element of adoption, and the adoption that lacks the legal form element is invalid. In this case, Chen does not have the legal act of adoption, does not constitute the legal relationship of adoption. Two children are children born out of wedlock of one of the spouses. After the two children were born, they lived with the defendant for five years, and the defendant fulfilled the obligations of raising, protecting, educating and caring for the child as a mother, so it should be considered that the stepparent relationship has formed between the two sides. In addition, according to the principle of maximization of the interests of minors, it is more beneficial for two children to follow the defendant. Therefore, in this case should be the defendant Chen to obtain custody of two children.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9;D920.5
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