对台湾地区代孕立法规制的考察
发布时间：2018-08-28 07:45
【摘要】：人工生殖技术的成熟与发展衍生出了代孕生殖技术。在现代社会，许多女性因无法生育，不得不选择代孕这一方式。但代孕有违传统伦理道德被法律所禁止，而法律的禁止与现实需求间的矛盾使代孕呈现地下化的趋势，反而滋生诸多社会问题。由此可见，应该通过立法对予以代孕规制，以化解法律与社会的矛盾冲突，稳定社会秩序，保障代孕相关主体的合法权益。 通过考察世界其他国家或地区的代孕立法，有的完全禁止代孕，有的完全开放代孕，有的则部分开放代孕。其中，我国台湾地区对代孕持有条件开放的立法态度，且立法已取得一定的成果，，特别是《代孕生殖法》草案的公布，使代孕问题得到了解决。通过采用比较研究和文本分析的方法，探求台湾地区解决代孕问题的思路和具体方法，总结其经验和不足，以更好地处理代孕问题。 从台湾地区对代孕问题的立法规制历程来看，其经历了伦理指导——行政指导——立法指导的变迁过程，究其变迁的原因，一是社会现实的变化和需求导致立法的变迁，二是理论的冲突和竞争促进立法的变迁，《人工生殖法》、《代孕生殖法》草案都是在该背景下出台的。从《代孕生殖法》草案中的具体内容来看，立法对代孕问题皆作了系统、全面的规定：代孕前，审查代孕主体资格、制定定型化代孕契约；代孕中，代孕的终止、代孕主体权益的维护、代孕医疗机构的责任与义务；代孕后，代孕子女权益的保护、代孕者探视权、代孕相关资料的制作、保存、代孕子女的查询权等问题都有相应的规定。从代孕立法规制背后的法律文化来看，其是法律文化变迁的结果，即法律文化竞争、冲突、融合的结果。因而，二者间的关系表现为，代孕法律文化的变迁直接影响代孕立法的变迁，代孕立法的变迁间接影响代孕法律文化的变迁，这是其间的互动关系。 通过对台湾地区代孕立法的考察，对代孕既不可简单地一禁了之，也不能完全开放，撒手不管，应结合社会现实的需要、理论研究的发展状况以及法律文化的发展情况等因素来制定代孕立法，这样才能使纸面的法转化为事实层面的法，才能有效治理代孕，维护代孕相关主体的合法权益，稳定社会秩序，实现法律的价值。
[Abstract]:The maturity and development of artificial reproduction technology has derived surrogate reproductive technology. In modern society, many women have to choose surrogacy because they cannot bear children. But surrogacy is prohibited by the law against the traditional ethics, and the contradiction between the prohibition of the law and the actual needs makes the surrogacy present a tendency of subterfuge, which leads to a lot of social problems. Thus, we should regulate surrogacy through legislation to resolve the conflict between law and society, to stabilize social order and to protect the legitimate rights and interests of surrogacy related subjects. By investigating the surrogacy legislation in other countries or regions of the world, some completely prohibit surrogacy, some are completely open to surrogacy, and some are partially open to surrogacy. Among them, Taiwan has an open legislative attitude to the conditions of surrogacy, and some achievements have been made in the legislation, especially the publication of the draft of the surrogate Reproductive Law, which has solved the problem of surrogacy. By using the methods of comparative study and text analysis, this paper explores the train of thought and concrete method of solving surrogacy in Taiwan, summarizes its experience and deficiency, and deals with surrogacy better. From the perspective of the process of legislation regulation on surrogacy in Taiwan, it has undergone the process of ethical guidance, administrative guidance and legislative guidance. The reasons for this change are as follows: first, the change of social reality and demand lead to the change of legislation. Second, the conflict of theory and the change of competition promotion legislation. The draft of artificial reproduction law and surrogate reproduction law are all issued under this background. From the specific content of the draft of the "surrogate Reproductive Law", the legislation makes a systematic and comprehensive provision on surrogacy: before surrogacy, the qualification of surrogacy is examined, and the contract of stereotyped surrogacy is formulated; in surrogacy, the termination of surrogacy, The protection of the rights and interests of the surrogate subject, the responsibility and obligation of the surrogate medical institution, the protection of the rights and interests of the surrogate child after surrogate pregnancy, the right to visit the surrogate, the making and preservation of the related information of the surrogate, the inquiry right of the surrogate child, etc. From the perspective of the legal culture behind the regulation of surrogacy legislation, it is the result of the change of legal culture, that is, the result of competition, conflict and integration of legal culture. Therefore, the relationship between the two shows that the vicissitude of surrogacy legal culture directly affects the vicissitude of surrogacy legislation, and the vicissitude of surrogate legislation indirectly affects the vicissitudes of surrogate legal culture, which is the interactive relationship between them. Through the investigation of surrogacy legislation in Taiwan, surrogacy cannot be simply banned, nor can it be completely opened up. It should be given up in the light of the needs of social reality. The development of theoretical research and the development of legal culture to formulate surrogacy legislation, so that the paper law can be transformed into the factual level of law, in order to effectively govern surrogate pregnancy, safeguard the legitimate rights and interests of surrogacy related subjects. To stabilize social order and realize the value of law.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16
本文编号：2208745
[Abstract]:The maturity and development of artificial reproduction technology has derived surrogate reproductive technology. In modern society, many women have to choose surrogacy because they cannot bear children. But surrogacy is prohibited by the law against the traditional ethics, and the contradiction between the prohibition of the law and the actual needs makes the surrogacy present a tendency of subterfuge, which leads to a lot of social problems. Thus, we should regulate surrogacy through legislation to resolve the conflict between law and society, to stabilize social order and to protect the legitimate rights and interests of surrogacy related subjects. By investigating the surrogacy legislation in other countries or regions of the world, some completely prohibit surrogacy, some are completely open to surrogacy, and some are partially open to surrogacy. Among them, Taiwan has an open legislative attitude to the conditions of surrogacy, and some achievements have been made in the legislation, especially the publication of the draft of the surrogate Reproductive Law, which has solved the problem of surrogacy. By using the methods of comparative study and text analysis, this paper explores the train of thought and concrete method of solving surrogacy in Taiwan, summarizes its experience and deficiency, and deals with surrogacy better. From the perspective of the process of legislation regulation on surrogacy in Taiwan, it has undergone the process of ethical guidance, administrative guidance and legislative guidance. The reasons for this change are as follows: first, the change of social reality and demand lead to the change of legislation. Second, the conflict of theory and the change of competition promotion legislation. The draft of artificial reproduction law and surrogate reproduction law are all issued under this background. From the specific content of the draft of the "surrogate Reproductive Law", the legislation makes a systematic and comprehensive provision on surrogacy: before surrogacy, the qualification of surrogacy is examined, and the contract of stereotyped surrogacy is formulated; in surrogacy, the termination of surrogacy, The protection of the rights and interests of the surrogate subject, the responsibility and obligation of the surrogate medical institution, the protection of the rights and interests of the surrogate child after surrogate pregnancy, the right to visit the surrogate, the making and preservation of the related information of the surrogate, the inquiry right of the surrogate child, etc. From the perspective of the legal culture behind the regulation of surrogacy legislation, it is the result of the change of legal culture, that is, the result of competition, conflict and integration of legal culture. Therefore, the relationship between the two shows that the vicissitude of surrogacy legal culture directly affects the vicissitude of surrogacy legislation, and the vicissitude of surrogate legislation indirectly affects the vicissitudes of surrogate legal culture, which is the interactive relationship between them. Through the investigation of surrogacy legislation in Taiwan, surrogacy cannot be simply banned, nor can it be completely opened up. It should be given up in the light of the needs of social reality. The development of theoretical research and the development of legal culture to formulate surrogacy legislation, so that the paper law can be transformed into the factual level of law, in order to effectively govern surrogate pregnancy, safeguard the legitimate rights and interests of surrogacy related subjects. To stabilize social order and realize the value of law.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16
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