Research On Judgement Path Of Civil Disputes Over Reproductive Rights

The civil dispute over reproductive rights refers to the infringement lawsuit brought by the victim on the ground of the damage of the reproductive rights.The author has collected 50 typical cases of civil disputes over reproductive rights,according to the different identities of the parties,the cases can be divided into "civil disputes over reproductive rights between non spouses" and "civil disputes over reproductive rights between spouses",According to the differences of the case’s fact,the former can be further divided into the type of infringing childbearing functions,the type of improper birth and the type of wrongful implantation of sperm,while the latter can be further divided into the type of failure to achieve fertility agreement,the type of concealing infertility before marriage,the type of fraudulent upbringing and the type of violating the fertility agreement.These different cases involve not only the basic issue of whether the "reproductive rights" is an independent civil rights protected by civil law,but also the following issues: in the disputes over infringing the reproductive function,whether the person who suffers from the loss of the reproductive function can claim compensation for the damage of reproductive rights? In the disputes over improper birth rights and wrong sperm implant,can the damaged couple claim not only damages for breach of contract,but also damages for infringement of reproductive rights? When the disputes of reproductive rights occur between spouses,does one spouse have the legally protected reproductive rights relative to the other? Does concealment of infertility,fraudulent upbringing and violation of " fertility agreement" before marriage constitute infringement of spouse’s reproductive rights?Regarding the above issues,there are many disputes in the theoretical and practical circles,Among them,there are not only those who agree that the reproductive rights is an independent civil right,but also those who advocate that the protection of childbearing interests should be realized through the right of health,the right of spouse or the right of general personality and other protection paths,the judgment paths is various.Although the above practices and ideas have their own reasons,there are alsounsatisfactory.As a legal right originated from the Constitution and the family planning law,and other relevant legislation,reproductive rights is a kind of fundamental right of the Constitution in nature,which is relative to the state,mainly including the right to defend against the improper interference of the state and the right to require the state to do something.The former is a kind of right of freedom in nature,and the latter is a kind of right of society.the former can also be violated by private individuals,and it can not be covered by specific personality rights.Therefore,it is necessary to make it a civil right so that it can be protected by civil law.Based on the spiritual personality interest attribute of reproductive freedom(containing the values of personality equality,freedom of personality,and dignity of personality)and the uncertainty of its right boundaries,the appropriate judgement path of civil disputes over reproductive rights is to put the reproductive rights into the category of the general personality right,rather than the specific personality right or right of health.Reproductive freedom,as a kind of personality benefit protected by general personality rights,is shared by men and women,it is not based on the premise that a citizen is married,nor is it the content of spouse rights.According to Article 9 of the Interpretation of the Marriage Law(3),there is no legally protected reproductive interest between husband and wife.For the above-mentioned different types of civil disputes of reproductive rights,corresponding judgments should be made according to the above-mentioned legal principles and regulations.The specific judgment path is as follows: in the civil disputes over infringing childbearing functions,the victim’s damage is the right of body and the right of health,the aggressor should compensate for medical expenses,nursing expenses,work delay expenses,the spouse’s reproductive interests are also damaged.The reproductive interests is a kind of general personality rights,if the general personality rights are infringed and serious mental damage is caused,the aggressor shall bear the responsibility of compensation for mental damage.In the civil disputes over the improper birth,both husband and wife lose the opportunity to terminate the pregnancy in time due to the fault of the medical institution,the damage includes property damage and general personality damage,in terms of property damage,The aggressor shallcompensate the husband and wife for the extra expenses for the maintenance of disabled children compared with the normal children,in terms of general personality damage,if the aggressor infringes the general personality and causes serious mental damage,he shall bear the liability for compensation for mental damage;In the civil disputes over wrongful implantation of sperm,if the wife gives birth to a child unrelated to the husband due to the wrong sperm implantation of the medical institution,which infringes upon the general personality right of the husband and wife and causes serious mental damage,the medical institution shall bear the liability for compensation for mental damage;in the civil dispute over the spouse cannot reach the fertility agreement,because there is no childbearing interest protected by law between the husband and wife,The behavior against the other party’s childbearing intention does not constitute infringement,and the defendant does not need to bear the liability for tort damages;In the civil dispute over the spouse conceals the infertility before marriage,the damage of the concealed spouse is the freedom of marriage rather than the reproductive rights;In the disputes over fraudulent upbringing,the plaintiff’s damage in childbearing interests has no causal relationship with the defendant’s behavior,so the defendant does not need to bear the liability for tort damages;in the civil disputes over violation of fertility agreement,the fertility agreement limits The parties’ reproductive freedom,which violates the good customs,it should be deemed invalid.The parties who violate the fertility agreement need not to bear the liability for breach of contract,because there is no legally protected reproductive interest between husband and wife,the violation of the fertility agreement does not constitute an infringement.