法理视角话代孕——兼析《人类辅助生殖技术管理办法》第三条第二款

Discussion of Surrogacy from the Perspective of Jurisprudence:Comment and Analysis on Article 3(2) of the Human Assisted Reproductive Technology Management Regulation

可行性上,代孕的社会需求旺盛、社会供给充沛、技术成熟可行;认同度上,除国家卫生健康委员会及其禁令管辖系统范围内,民、商、学和实务等社会各界更多取向认可和开放(有偿)代孕。试图对代孕本身及其相关主体、现制和社会意识进行法理学上不设预定的求证与解析,尽可能探求出一有据、可信且具说服力之答案,最终得证——有偿代孕不具正当性。该论证过程的另一副产品为《人类辅助生殖技术管理办法》第三条第二款在法理上合法、有效,虽有瑕疵但可补正。

Firstly, surrogacy presents a feasibility in practice, which has a high social demand and abundant social supplies, as a mature technology. Secondly, surrogacy becomes more recognized and acceptable. Besides the National Health Commission and the domain under its prohibition, all sectors of the society including the common people, the business circle, the academic circle and the practice field, show a tendency in the recognition of surrogacy and the permission of its payment model. Therefore, in order to prove that surrogaey is not legitimate and reasonable, and seek a most convincing and reliable explanation, the author tries to conduct a hypothesis-free jurisprudence research to prove and analyze questions on surrogacy itself, as well as its relevant subjects, existing institution, and social consciousness. Meanwhile, this argument will confirm the legality and validity of article 3 （ 2 ） of the Human Assisted Reproductive Technology Management Regulation, which is imperfect and should be revised.