从堕胎看胎儿利益保护(上)

Fetal interest protection from abortion(A)

胎儿利益保护在我国计划生育背景下缺失,司法实践中忽视胎儿利益的案例亦随处可见。造成这种现象的原因在于法律规定欠缺的同时,现有规定又不乏相互冲突。司法与立法中存在的问题也反映出了法学理论的缺位。各国对堕胎的法律规定不同、某一国对堕胎的态度前后有别。如:罗马受到宗教尤其是基督教的影响,美国牵涉胎儿利益与母亲私生活权的冲突与平衡,中国计划生育政策的影响,医学发展也日益影响胎儿利益保护的立法,整体上尊重胎儿价值与堕胎宽松化并存。在我国当前历史环境下,暂不宜纠结于胎儿在宪法中的地位,亦不必过多考量胎儿利益受损时的刑事法律保护——二者可待时机成熟时徐图之,而宜将目光重点关注于如何解释民法总则中的相关条款以保护胎儿利益。

The protection of fetal interests is absent in the background of family planning in our country. Cases of ignoring the interests of fetus in judicial practice are also seen everywhere. The reason for this phenomenon is the lack of legal provisions at the same time, the existing provisions there is no lack of conflict. The problems existing in the judiciary and legislation also reflect the absence of legal theory. Different countries have different legal provisions on abortion, and one country has different attitudes toward abortion in the long term of history. For example, Rome is affected by religion, especially Christianity. The United States involves the conflict and balance between the inter- ests of the fetus and the private rights of mothers. The impact of China＇s family planning policy and the development of medicine have increasingly affected the legislation on the protection of fetuses. On the whole, the respect for fetus value and abortion relaxation co-exist. Under the current historical circumstances in our country, we should not tan- gle with the status of the fetus in the constitution for the time being and not have to think too much about the criminal legal protection when the fetus＇s interests are impaired. Focus on how to interpret the relevant provisions of the general provisions of the Civil Code to protect the interests of the fetus.