| Human social production includes two kinds, one is the production of material, and another one is of human reproduction. The former one provides the basis for the development of human civilization. The latter provides human resources, and is the performance of population reproduction and is of economic significance, and neither is dispensable. Fertility is the guarantee of the human development, through which, the human exists on the earth from generation to generation. In recent years, casesof the benefits of family disputes have gradually increased, making the legal issues into public view, also raising the thinking of judicial circles and scholars. However, reproductive interests is too difficult to handle, limited by my capacity, hereby I only concentrate on civil law as a starting point, briefly review about the nature and significance of reproductive rights, and discuss on popular cases inclassification, and work out the legal regulation of the method or direction.The first chapter of this paper first made a sort of some basic concepts, including the legal understanding of the word “birth” and the more popular topic in recent years “reproductive rights”. The concept of “reproduction” generally refers to women pregnant after in vivo incubation of fetal and birth, which is a reproductive behaviorof human beings. It is defined differentlyin different fields, and is divided into broad sense and narrow sense. Under normal circumstances, the generalized“reproduction”can be dismantled in birth and raise,referring to the complete process ofa life from pregnant, birth, raise and education. It is understood as above in social science. The narrow sense of “reproduction” only refers to the production in this stage, namely, the production, the child that is born of a dynamic process of. Concepts from the perspective of law,consist of basic factors as right, obligation and responsibility. For the “reproduction”, in order to reflect the consistency of rights and obligations, this paper will define it as "The social phenomenon of natural person with reproductive rights and capacity to act the reproduction of new life in certain social conditions. " The concept of uniform consistency helps keep our discussion of context and coherence.Next, I sort out the history of the legal protection of reproductive interests. The concept of "reproductive rights" has experienced a long and rich history from the view of putting forward to enter the international legal documents and then go to the civil judicial decision documents.The appropriateness of reference in courts of reproductive rights, also remain to be discussed. First of all, this paper sorts out the current domestic and international legislation about the right of birth. It raised from the Western feminist movement, by the proclamation of Teheran, "on the equal status of women and their contributions to peace and development, and the declaration of Mexico", about the equal status of women and their contributions to the peaceful development and declaration of Mexico ", the Mexico City Declaration on population and development", the Amsterdam declaration and the international population and development conference programme of action such as a series of international documents, laid out for himself as a basic human rights status. Then some countries began to carry out the legislative work related to reproductive rights, such as the United Kingdom, the United States, Australia, Italy and Japan, etc. In China, the legislation about reproductive rights began in 1978 constitution, combined with the basic national conditions of China’s population quantity, high density, high pressure, As a basic national policy of our country, family planning is the main cognition of the civil rights and obligations of the people in our country for a long time.It is also stipulated in the "marriage law" and "family planning law" in the "marriage law". Since 1992, from "he protection of women’s rights and interests protection law", our country emphasis equallyon the rights and obligations.However, these are all constitutional and constitutional documents, and reproductive right hereby is a fundamental human right. In civil judicial practice, is not suitable for directly as the basis of the referee.In the second section, I discussed the nature of the civil law.The academic circle has many different opinions, among which the main difference is the theory of independent and non-independent theory. Independent doctrine and includes spouse right and personality right.In my opinion, interest of reproduction is a legal interest.China’s existing civil legal system, has been enough to deal with civil disputes related to reproductive interests.At present, if there is a special case, it is possible to deal with the case individually.There is no need to increase the reproductive right to the status of independent civil rights.The second chapter of this article is to discuss the specific protection path when the reproductive interests are violated.Hereby I use the classification discussion and the individual prominent methods.First of all, all cases are divided into two categories, one is the emphasis on the reproductive function of the infringement, and the other to emphasize the right to choose. In fact, there is a certain intersection between the two, but the focus is different.The first category focuses on physical damage to people’s physical health, which means damage or even loss of reproductive organs and fertility. Through the analysis of relevant cases, in my opinion,in such cases body right and the right to health could be the basis of claim for damages,and the damage of the reproductive interests as one of the important factors of the compensation for mental damage.While the second kind of reproductive autonomy damage, mainly due to medical treatment intent or negligence, leading to the contraceptive wrongful conception, or the failedabortion, or the wrongful birth control, or giving birth to a baby who is not suitable for born because of major birth defects in the fetus which is not checked out.Some of these situations will involve the infringement of the right of body and the right of health, and some involve violations of general personality rights, both of which share similar methods, but different ideas.Secondly, I discuss the problem of the different types of birth problem between spouses, because such cases are hot anddifficult, and arecommon in life. Further more,the handling of such cases can respond to the judiciary for the nature of the reproductive rights of the position.In the private law, the right of birth belongs to the category of personality right.Personality right is a kind of right against the world and a right to control.Each person enjoys the right equally and independently, without interference from others.Admitting that the spouse’snot cooperating with each other is a violation to reproductive right, will make the right a kind of spouse right. Person who holds such opinion agree that spouses have the right to ask the other party to cooperate with their own reproductive behavior, and such right is named as “productive claim right”.Correspondingly, the spouse also has the obligation to cooperate with each other’s reproductive behavior.However, in this way, the party’s personal freedom is bound to be deprived of.In other words, if we work outtheindependent “reproductive rights”in order to support this view then the right will inevitably have a confrontation with personal freedom. Such design is obviously contrary to the existing logic of the civil law.Reproductive right is a basic constitutional right, and the reproductive interests are legal interests which are subordinate to the personal right, and are equal to every citizen, whether married or not.Ifahusband and wife have disagreements on the issue of fertility issue, it belongs to family disputes.There is no right conflict, nor law issue. July 4, 2011, the Supreme People’s Court released “on Several Issues concerning the application < the people’s Republic of China Marriage Law > interpretation(III)”,ninth of which provisions that:“Husband to wife terminates pregnancy and violation of their reproductive rights request on the grounds of damages of, the people’s court shall not be supported, because husband and wife both sides whether family disputes, resulting in feelings have indeed broken, a party request divorce, the people’s court the adjustment is invalid should be disposed of in accordance with the provisions of the Marriage Law Article 32, paragraph(5). ”The release of this article is the first mention of the civil law system in our country for the treatment of family fertility issues. It does not favor either husband or wife.On the contrary, it correctly expression that if the wife follows her individual will to end the pregnancy, she willnot infringe on the husband’s reproductive rights.It can be interpreted that a spouse in t any dispute on the issue of reproduction will not hurt the other party’s right. Such disputes do belong to the jurisdiction of the court.Only when such conflicts have risen to the point of affecting the relationship between husband and wife and the breakdown of the marriage law, the divorce shall be prosecuted according to the provisions of the "marriage law".This provision is interpreted in a wrong way after the introduction.At last, I draw a conclusion through the study of comparative laws on the protection of legal interests:in our country, there are three ways to protect legal interests of reproduction.The first is the general principle of public order and good morals.Second is through the body health right and the general personal right.The third one is to quote 106 th of General rules of civil law directlyas general provisions of Tort Liability Act. On this basis, I appeal to more discretion for judges under the constraints of the statute law.Limited to my academic level, this article is not profound. There are still more problems for research. |
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