论人工生殖子女父母身份之认定

传统民法中父母子女关系的建立,血缘与怀胎是母亲同时具备的要素,法律上兼以二者作为认定母子关系的指标。随着医学科技的发达,人工生殖技术使得血缘与怀胎间的相连性不再理所当然,不孕夫妻可以借用他人的精卵通过体内或体外受精,使妻孕育分娩子女,甚至可以将不孕夫妻的受精卵植入他人的子宫怀胎分娩,使得人类的繁衍可以在血缘之外的母体进行。生殖科技对现行法律制度提出了诸多挑战,人工生殖子女之父母身份的认定问题尤为突出。为避免因采用特殊规则形成人工生殖子女为特殊子女的不当认识,立法上应力求采用与自然生殖同样的父母认定标准确定人工授精子女的亲子关系,即依据出生事实确定谁是母亲,根据婚生推定及否认制度确定谁是父亲,丈夫的术前同意限制其对子女的婚生否认权的行使;立足于有限性开放代理孕母的观点,确定代孕子女的父母身份时,法律应突破传统的分娩者为母亲的观念,通过特殊立法规定遗传父母为代孕子女之法律父母。

How to Identify Parent of Children by Assisted Human Reproduction

Consanguinity and pregnancy are two essential factors to be a mother and to establish a parent-child relationship in traditional civil law.Because of the development of medical technology,consanguinity would never be certainly related to pregnancy.Wives could pregnant and bear by AI or IVF.And infertile husband and wife could even be planted into uterus of others.Therefore multiply could be realized by mothers without any consanguinity.Medical technology has put forward a large challenge for our legal system,especially how to identify parent of such children.To avoid the improper opinion that children born by assisted human reproduction are peculiar because of the use of special rules,rules identifying their parents should be same as natural bearing,that is to say,to identify a mother according to the birth fact and identify a father according to whether it is born in period of marriage.A father's agreement before surgery will restrict his right of denying the child.While identifying parent of children by surrogate mother,law should break the traditional view that mother is who delivered,and special rules should be settled that heredity parents are legal parents on the basis that surrogate mother is permitted to some degree.