夫妻生育权冲突之对策研究

A Study on the Countermeasures for the Conflicts of the Reproductive Rights Between a Couple

以不同标准划分,夫妻生育权冲突有孕前冲突与孕后冲突、自然生育冲突与人工生育冲突、有生育协议冲突与无生育协议冲突、夫不生冲突与妻不生冲突等多重面向。解决夫妻生育权冲突,要尊重生育权具有身份性的人格权属性,既要主张生育权为夫妻双方平等享有、共同协商行使,又要在不同阶段对妻子侧重保护。夫妻双方平等协商达成的生育协议,其中有关人身的生育内容因有违强行法规定和人权保障原则应属无效,但是从"道德遗留"义务、生育对婚姻与家庭的意义和保护守约方利益出发,其中的经济违约责任可以有条件地被认定为有效。权利救济的办法应有重新达成生育协议、离婚和违约责任等多种选择,司法还应有专门的诉讼制度保障等。

According to different standards,the conflicts of the reproductive rights between a couple can be divided into multiple categories,such as pre-pregnancy conflicts and post-pregnancy conflicts,natural fertility conflicts and artificial fertility conflicts,conflicts with a fertility agreement and conflicts without a fertility agreement,the conflicts brought by a husband who would not give birth to a child and the conflicts brought by a wife who would not give birth to a child.In order to solve these conflicts,we should respect the fact that reproductive rights are personality rights with identities.We should not only advocate that reproductive rights should be enjoyed equally and exercised jointly through consultation between a couple,but also lay particular emphasis on protecting the wife at different stages.In the fertility agreement reached through consultation between a couple on an equal footing,the fertility content of a person concerned should be invalid on account of violating mandatory laws and the principle of human rights protection.However,from the perspective of the obligation of"moral legacy",the significance of fertility to marriage and family,and the protection of the interests of the party abiding by the contract,the economic liability for breach of a fertility agreement can be conditionally determined to be valid.The methods of right remedy should be various,such as re-reaching a fertility agreement,divorce and shouldering the liability for breach of contract,and judicial departments should also provide a special litigation system protection.