论生育权的历史演变及其性质

Discuss the Historical Evolution and Nature of Right to Bear

生育权是指自然人基于自己的意愿决定是否生育子女以及如何生育子女的自由。基于某些原因,我国法学界对生育权的研究并没有给予充分的重视。生育权并非历来有之,而是先后经历了自然生育、义务生育和权利生育三个阶段。通过对“基本人权说”、“宪法权说”、“人格权说”和“身份权说”等诸种关于生育权性质学说的阐释,指出生育权作为自然人与生俱来的维系民事主体独立人格所必需的一项权利,应当既是一项基本人权,也是一项人格权。

Right to bear means that natural person can decide freely whether to bear his/her child or not and how to bear his/her child according to his/her own will. The academic community didn＇t attach importance to the right to bear by some reasons enough. Right to bear hasn＇t been existed until the metaphase of 19th century, it undergoes three phases, they are natural to bear, compulsory to bear, and right to bear. The nature of right to bear has been discussed for a long time by scholars in academic community, but they can＇t reach an agreement, it turns out many kinds of doctrines subsequently, such as ＂the Doctrine of Fundamental Human Right＂ ,＂the Doctrine of Constitutional Right＂, ＂the Doctrine of Personality Right＂, ＂the Doctrine of Status Right＂, and so on. Right to bear is a kind of inherent rights, and it is necessary for civil subjects to maintain their independent personalities, so it should be considered as a kind of fundamental human rights and personality rights.