代孕合法化的争议与回应

Controversies and Responses to the Legalization of Surrogacy

近年来,随着人类辅助生殖技术的发展,主张代孕合法化或有限合法化的趋势愈发明显。本文基于公序良俗的本土性和时代性特征,采纳以尊严为中心、权利义务相统一的话语体系,秉持明定主义的理论立场,结合对权利泛化现象的辩证分析,论证代孕在观念日新的当下并不具备合法化的法律和现实基础,禁止代孕在很长一段时间内仍是我国应当坚持的立法选择。我国现行禁止代孕的立法设计还存在不足,以致代孕行为屡禁不止,因此应尽快出台《人类辅助生殖法》,协调各相关监管机构开展联合执法,加强行政处罚力度等,从不同维度对代孕行为进行打击和监管,共同维护社会的稳定和谐。

In recent years, with the development of assisted reproductive technology, the trend of advocating the legalization or limited legalization of surrogacy has become more and more obvious. Based on the local and contemporary characteristics of public order and morality, this paper adopts the discourse system centered on dignity and the unity of rights and obligations, upholds the theoretical position of specificationism, and combines the dialectical analysis of the phenomenon of generalization of rights to argue that surrogacy does not have the legal and practical basis for legalization at this time of new concepts, and the prohibition of surrogacy should remain the legislative choice in China for a long time. There are still some deficiencies in the current legislative design of prohibiting surrogacy in China, so that surrogacy acts are repeatedly prohibited. Therefore, the Assisted Reproduction Law should be introduced as soon as possible, and the relevant regulatory agencies should coordinate to carry out joint law enforcement and strengthen administrative penalties, so as to combat and regulate surrogacy from different dimensions and jointly maintain social stability and harmony.