亲子关系确认理论的本土实现

The Local Realization of the Confirmation Theory of Parent-Child Relationship

在近百年的亲子人身关系立法改革中,日本、瑞士、德国等10多部民法典主要剔除了歧视非婚生子女的内容,重构亲子关系范式;父母子女间身份关系的成立是彼此产生权利和义务的前提,人格平等和人权保障是推进该领域法律变化的主因,保护儿童利益是其不变的核心。辅助生殖技术正在并将长期助力人类生育模式的科技性演变,约定俗成的父母身份认知受到前所未有的挑战,《民法典婚姻家庭编》有必要在贯彻儿童利益最大化原则下,探索亲子关系确认理论的本土化,增设亲子关系确认制度,实现既尊重成人婚姻自由又保护儿童权利的规则体系,以适应于变迁中的中国家庭。

In the legislative reform of the personal relationship between parents and children in the past century,the civil codes in most of countries have eliminated the content of discrimination against children born out of wedlock and reconstructed the paradigm of the relationship between parents and children;the establishment of the identity relationship between parents and children is the premise of each other’s rights and obligations,personality equality and human rights protection are the main reasons for promoting the legal change in this field,and the protection of children’s interests is the core.Assisted Reproductive Technology is and will continue to help the scientific and technological evolution of human fertility model,and the conventional recognition of parents’identity has been challenged unprecedentedly.Under the principle of the best interest of child,it is necessary to explore the localization of the confirmation theory of parent-child relationship in the marriage and family copy of the civil code,and establish the confirmation system of parent-child relationship,so as to realize the rule system not only respecting adults marriage freedom,but also protecting children rights,and to adapt to the changing Chinese family.