论我国完全代孕的法律规制

发布时间：2019-03-02 21:12

【摘要】：随着现代医学技术研究的不断深入,人类生育繁衍的秘密也被逐步揭晓,从而衍生出的各种医疗技术也被运用于医学治疗领域。同时,社会的高速发展在带来了社会进步的同时也给生态环境造成巨大的损伤,由此引发了连锁反应:空气、水源、粮食等人类生活必需品的质量的逐步恶化,使得人类的遗传基因也在发生悄然地变化,导致了更多的育龄夫妇患上了不孕不育症。在此类人群中,有一部分即使经过了科学系统地治疗仍然无法生育。相关数据显示,我国目前不孕不育的患病率在我国育龄夫妇中占13%左右,并且其增长速度也呈直线上升趋势。因此,许多夫妇在治疗失败后,求子心切的他们想到了运用先进的医疗技术以“代孕”的方式来实现自己的心愿,这就导致了代孕市场的“火爆”现象。在我国,因为“代孕”引发的民事纠纷也屡见不鲜。面对科学技术的不断发展与人们思想观念的进步,我国的代孕立法却是停滞不前,仅有在2001年卫生部为了规制“试管婴儿”技术的使用所发布的管理办法,该管理办法的制定初衷是为了规制“试管婴儿”技术的使用。该办法中明令禁止医疗机构及医务人员实施代孕技术,但是未对其他主体进行代孕行为作出任何说明。如今许多私人代孕仍在“暗箱操作”,甚至在某些地方发展成了“灰色产业”。可是,由于我国代孕立法的缺失导致了我国代孕市场乱象丛生,参与代孕技术的各方权益无法得到保证。鉴于生殖技术的发展现实及不孕不育家庭的需求,代孕生殖技术应当有条件地开放。本文分为三个部分,将在厘清完全代孕的概念及特征的基础上分析非商业性完全代孕的本质,对其合法化道路中存在的争议进行论述,并试图在法律上对完全代孕的权利、义务进行规制,完善完全代孕合同的内容以及各部门的规范监管,使其操作不断规范化、法律化,从而促使其发挥应有的价值,将代孕生殖行为标准化、透明化。
[Abstract]:With the deepening of the study of modern medical technology, the secret of human reproduction has been gradually revealed, and various medical technologies derived from it have also been used in the field of medical treatment. At the same time, the rapid development of society has not only brought about social progress but also caused enormous damage to the ecological environment, thus triggering a chain reaction: the gradual deterioration of the quality of the necessities of human life, such as air, water, food and so on. As a result, human genes are changing quietly, causing more couples of childbearing age to develop infertility. Some of these people are still childless even if they are treated scientifically and systematically. The related data show that the prevalence rate of infertility is about 13% among couples of childbearing age in China at present, and its growth rate is also increasing in a straight line. As a result, after many couples failed their treatment, they thought of using advanced medical technology to "surrogate" their wishes, which led to the surrogate market "hot" phenomenon. In China, civil disputes caused by surrogacy are also common. In the face of the continuous development of science and technology and the progress of people's ideas, the legislation on surrogate pregnancy in China is stagnant, only in 2001, the Ministry of Health issued management measures to regulate the use of "test tube baby" technology. The management was originally designed to regulate the use of test-tube technology. This method explicitly prohibits medical institutions and medical personnel from implementing surrogate technology, but does not give any explanation of surrogate behavior of other subjects. Today, many private surrogacy is still operating in the dark box, and in some places it has developed into a "grey industry". However, due to the lack of surrogate legislation in our country, the market of surrogacy in our country is in chaos, and the rights and interests of all parties involved in surrogate technology can not be guaranteed. In view of the reality of the development of reproductive technology and the needs of infertile families, surrogate reproductive technology should be opened conditionally. This article is divided into three parts. On the basis of clarifying the concept and characteristics of complete surrogacy, this paper will analyze the essence of non-commercial complete surrogacy, discuss the controversy in its legalization road, and try to give the right of complete surrogacy in law. Obligation to regulate, perfect the content of the complete surrogate contract and the standard supervision of each department, and make its operation standardized and legalized, so as to promote it to play its due value, standardize the reproductive behavior of surrogacy, and make it transparent.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.16

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