代孕行为的刑法规制

Criminal Regulation on Surrogacy

代孕在给人类带来福祉的同时严重冲击社会伦理的底线,扰乱了正常的医疗和社会管理秩序。在现有法律框架下,对此类行为处以行政处罚,既明显失当和乏力,也非长久之计。借鉴境外有关代孕的规定,我国大陆当前对代孕行为的规制,存在禁止不够彻底、禁止的规范层次偏低、缺少刑法支持等不足,故应将代孕行为入罪、全面禁止、增设商业性代孕罪等,以通过更严厉的刑事处罚来回应社会现实需要。

While bringing happiness to mankind,surrogacy has a serious impact on the bottom line of social ethics at the same time, hinders the normal medical supervision order, and undermines the social management order. Under the existing legal framework, administrative penalties for such actions are both obviously improper and weak, and are not sustainable as well. Drawing lessons from regulations on surrogacy abroad, the author argues that there exist some insufficient points in current surrogacy regulations such as inadequate ban, low specification ban level, and no criminal law support, etc., thus puts forward the following suggestions to meet social reality needs by tougher criminal punishment： incriminating surrogacy, totally banning surrogacy, and add the crime of commercial surrogacy, etc..