当代中国计划生育法制的立法困境与破解之道

Legislative Dilemma of Contemporary Chinese Family Planning Law and Its Possible Solutions

作为基本公民权利,生育权可以受到国家干预,但是国家干预公民生育权的手段和范围需要有正当性与合法性基础,需要有伦理和法理上的依据。以此为背景审视当代中国"计划生育"基本国策和计划生育法制,当会发现其在立法层面存在诸多困境和问题。因此需要对其进行伦理与法理的反思,需要直面这些困境并对其进行正当性修复。如此才能巩固这一基本国策和法律制度的正当性与合法性基础,进而促进依法治国、依法行政和人权保障事业的发展。

As a kind of basic civil rights,reproductive rights can be intervened by the state,but the means and scope of the state intervention should be justified and legal,and needs ethical and legal basis. Seeing from this point of view,contemporary China’s family planning policy and family planning law may have many difficulties and problems on its legislative level. Therefore it needs to be reflected from ethical and legal points and needs to face these difficulties and carries on the reasonable correction. Only in this way can we consolidate the justified and legal foundation of this national policy,and then promote the rule of law,administration according to law and development of the human rights protection.