Analysis Of Reproductive Right And Its Remedy Systems Of Civil Right

The Constitution and the Marriage Law clearly stipulated that the citizens'rights and obligations of family planning. Law on the Protection of the Rights and Interests of Women and Population and Family Planning Law further defined the reproductive rights of citizens. As the existing legislations related to reproductive rights are mainly established from the perspective of the conflict between the national birth control and the reproductive rights of parents, scholars have fierce debates on the nature and other aspects of reproductive rights, which mainly focus on whether it is, in essence, right of identity or personality right , and whether its subjects are only for husband and wife, with little attentions paid to deep-seated problems in terms of power and restrictions of reproductive right , and its tort relief. This paper takes the view that the reproductive right is both the right and obligation of citizens. The scholars believe that it is either the right of identity or personality right. But no matter whether it is the former or the later, scholars will not deny that reproductive rights are personal rights. For those who ascribes the reproductive rights to the right of identity, they hold the view that the reproductive rights can only access to men and women after they have married; while for those who ascribes the reproductive rights to personality right, they consider both men and women have the reproductive rights as long as they reach up to the marriage age. Corresponding to the debate, the judges had to deal with, only based on their understanding of reproductive rights, a large number of relevant cases with no laws to refer to, which result in confusion of the applicable law.This paper, starting from its development process, relying on its contents, applying the methods of legal thinking, and analyzing it with the basic legal scope, defines the reproductive right as personality right. According to the idea that the reproductive right is personality right which belongs to the personal rights, which, is a part of civil right, and, of course is legal rights. Classifying the reproductive right to the personality right is conducive to its protection. Reproductive rights, including power control over fertility, right to know the procreation, and right to self-determine on procreation and other rights. The power of reproductive rights consists of right to control over fertility, right to know the procreation, and right to self-determine on procreation and other rights. Reproductive right is a specific personality right, therefore it should be protected in accordance with the general personality rights. As for the relief of reproductive rights, the civil legal remedies can, to the highest degree, compensate victims of the direct and indirect losses.In addition to the introduction and conclusion, this paper is divided into four parts:The first part concentrates on fertility and reproductive right. Reproductive right is only the right of bearing children. The development of reproductive system went through three stages: natural family planning, obligatory reproduction and reproductive rights stage. In china, the reproductive right is stipulated by the Law on the Protection of the Rights and Interests of Women, the Constitution, the Marriage Law, and the Law on Population and Family Planning, among which the reproductive rights of citizens are reasonable.The second part focuses on the nature of reproductive right. Reproductive right is classified in accordance with the scope: is it moral rights or legal rights? If it is the later, then is it the constitutional rights or the civil rights? And if it is the civil right, what are its legality, legal interests, tort relief, and legal independence? It is further analyzed according to the property rights and personal rights, and finally it is studied under the concept of right of identity and personality right. Therefore the"personal right theory"cannot be established. Reproductive rights, in our country ,is the right that a citizen is legally entitled to have of deciding freely whether to bear children ,the time , number, and interval of bearing children and the way of reproduction. Research on the reproductive rights is of great significance: it, theoretically, is favorable to the common understanding of reproductive rights, is conducive to the improvement of the civil law system, and is conducive to the protection of reproductive rights in China. While as in judicial practice of current days, the protection of reproductive rights should be in accordance with that of the general personality rights. As the reproductive right is ascribed to the personality rights in the future, it should be protected according to the specific personality rights.The third part is mainly about the power of reproductive right and its limitations. Reproductive right contains right to control over fertility, right to know the procreation, and right to self-determine on procreation, with no so called "birth right of claim"between husband and wife. At the same time, the exercise of reproductive rights is restricted, such as the out-of-wedlock births and the condemned births.The fourth part analyzes remedy system of civil rights. The behavior of violating reproductive rights is a fault behavior, caused by the spouse, the medical institutions, other units and a third person. Among the various methods of the relief of reproductive rights, the civil legal remedy, which contains mediation out of court, arbitration and civil litigation, is the most direct way to comfort the victims of their mind. Methods of bearing liability for violating reproductive rights include property remedies and non-property remedies.The conclusion acknowledges the legal basis for remedies of birth right. At this stage, remedies for birth right can be in accordance with the general personality right, while after the establishing of the birth right as civil law the remedies can be based on its provisions.