On Birth Right

The history of in-depth research on treating birth right as a basic human right is not long in both China and the world. It should be said that, in China, from the perspectives of both law theories and legal practices, birth right is a kind of newly emerged right. What's the nature of birth right? What's its scope of right? Should the implementation of birth right be limited? How should it be relived should birth right be infringed? What kinds of problems may the special birth manner of birth right cause and how should they be solved? These issues are analyzed and discussed in this thesis one by one. The author puts forwards his own opinions and it is hoped that these views can help improve the legal system of birth right in China.This thesis is divided into five parts:The first part is the understanding about the nature of birth right. The connotation of birth right is directly and closely connected with the word birth and therefore it is necessary for us to explain the meaning of birth in order to clarify the definition of birth right. The word birth is usually explained in two ways: one refers to the whole process of impregnation, pregnancy, and birth, i.e. bearing a child; the other one refers to both bearing and raising. Bearing means bearing a child, while raising means the bringing up and educating a child. The birth right discussed in this paper does not include raising; it only refers to the right of bearing a child.The nature of birth right is multilayered. To be specific, it includes the following several layers: birth right is the basic human right; birth right is a kind of civil right that is protected by the constitution; birth right is a kind of identity right.The second part defines the right scope of birth right. According to the definition of UN and related regulations in China, birth right is a unity of right and obligation. Besides enjoying birth right, a couple also should consider the needs of their present and future children and their responsibility to the society. All rights are a kind of freedom within a certain limit. The scope of birth right is actually the freedom of deciding bearing children or not, the time of bearing, as well as the manner of bearing. But this freedom should be at the condition of being responsible to the society, the country and the healthy growth of children and should be implemented according to law. Specifically, it includes: birth requesting right, birth deciding right, birth manner deciding right and birth right of knowing the inside story.The third part illustrates limits on the implementation of birth right. When implementing birth right, people should consider the need of their present and future children and their responsibility to the society. When deciding whether to bear or not, and choosing the time and manner of bearing, parents should consider that the country and society shall undertake certain responsibility to the unborn children. Birth right is a basic right that is not only limited by the physiological condition of people but also by laws or policies. As the limitation of any other rights, the main reason for limiting birth right is that the freedom of birth right embodies the unity of individuals and society. The basic national situation in China is large population, relatively deficient resources, and underdeveloped economy. The limitation of birth right has its realistic needs. This limitation specifically includes: limit on the age of the subject of bearing, limit on the number of children borne, limit on the manner of bearing, limit on the birth right of the people with serious communicable diseases and limit on the gender of children.The fourth part analyzes and summaries the path of relieving birth right. Without birth right, there would be no relief of it. Legal birth right is the foundation for the existence of relief; but if birth right can not be protected by law, it won't become a legal right. Because there is a conflict between the birth right of individuals and national interest, and conflicts of birth right among individuals, the relief of birth rights becomes necessary. It specifically includes: relieving birth right by private force, public help and public force. The fifth part discusses the issues caused by birth right during special birth manners and the solutions. The best way of realizing birth right is natural reproduction. This kind of manner will not cause any legal problems. Such artificial manners as artificial fertilization, deputy pregnancy and cloning belong give the people who are not able to bear their own children the opportunity of reproducing. However, this manner has many legal problems since it came into being and disputes incurred by it often bother us. From the perspective of bearing, the main issues are: what artificial manners can become the manner of realizing birth, what conditions should be met in order to adopt these manners, and what legal position should the borne children hold, etc.Among the issues of birth right incurred in artificial fertilization, when the gamete used in artificial fertilization or half of the genetic materials of embryo that is implanted to the womb do not come from one party of the parents, the writer thinks that the identifying of birth right should be closely connected with the wish of the party concerned. If both the parents agree to accept gamete of a third party, or zygote or embryo with the participation of a third party, then the couple has exerted the birth right. In artificial fertilization without mate, to decide whether he or she has exerted his or her own birth right, the most important thing is to notice the actual with of the party concerned.In the manner of deputy pregnancy, we should allow deputy to be legalized because forbidding deputy pregnancy directly deprives the birth right of woman with defect embryo function, and most importantly, it deprives the birth right of male without mate. Secondly, each person lives in a society with many rules including laws and moral. The people who choose deputy pregnancy have to consider pressure from non-legal aspects and therefore they should think about their final decision carefully. In light of the interest of future children, the people who choose deputy pregnancy should seek woman that is familiar to them or on whom they can rest their mind. Thus this will not only maintain the personality and dignity of women of deputy pregnancy but also have basic consideration on her. Thirdly, in system, we can prohibit deputy pregnancy to be used for commercial purpose.In light of the current condition of reproduction cloning, as a kind of complementary birth manner, the condition for human cloning has not been met and human cloning also lacks legal foundation, and under the circumstance that the issues of whether to continue experiments or not and how to launch experiments have not been solved and there is not enough guarantees to safety, it is not viable to use cloning as the manner of realizing birth right. In short, cloning is not the manner of realizing birth right in quite a long term.All in all, the issue of birth right is a complex problem, and there is still a long way to go from law theories to legislation, so it needs the collective efforts of scholars, legislators and judicial personnel.