The Constitutional Study Of The Application Of Subject Restrictions To Human Assisted Reproductive Technology In China

Assisted Reproductive Technology(ART)refers to the use of medical techniques and methods to replace one or all steps in the natural reproductive process of technical means,the development of this technology for fertility insurance,treatment of infertility and same-sex couples to achieve fertility provides an effective way.The development of this technology provides an effective way for maternity insurance,treatment of infertility,and same-sex couples to achieve fertility.way.Because this technology is also accompanied by many conflicts with ethics,society,and policies,and at the same time,the legislative norms are relatively lagging,leading to the dilemma of disputes about human assisted reproductive technology without relevant legal basis in practice.From the perspective of the constitution,to discuss whether a restriction is constitutional,the real question is: what rights of citizens in the constitution are restricted,and whether such restriction meets the requirements of the constitution.my country’s research on human assisted reproductive technology is mainly carried out from the perspective of reproductive rights.There is no express provision for reproductive rights in the constitution,but this does not mean that the constitution does not guarantee it.The protection of reproductive rights can be treated as a right not enumerated in the constitution,and guaranteed in accordance with human rights clauses,and then constitutional review from the perspective of basic rights restriction.From the formal requirements(legal reservations)and substantive requirements(public interest),the legitimacy of the purpose,the appropriateness of the means,and the necessity of the means have examined the restrictions on the subject of the application of human assisted reproductive technology,and found that my country currently restricts the qualifications of the subject of human assisted reproductive technology Violated the constitutional restrictions on basic rights in form and substance.In addition,as a derivative technology of sperm and egg freezing technology,in addition to being part of the process of realizing artificial reproduction technology,it also has the effect of realizing maternity insurance.Since maternity insurance itself is not included in the scope of maternity rights,it is different from the constitutionality study on the qualification restriction of the subject that directly realizes maternity rights from the right restriction itself.The constitutionality study on the qualification restriction of the subject that realizes the purpose of maternity insurance is mainly based on From the perspective of the constitutional principle of equality.The core of the principle of equality is the principle of reasonable difference,and the review of the principle of reasonable difference first starts with the determination of the review standards for legislative classification.However,my country does not have relevant legislative classification review standards.Therefore,the review standards for human assisted reproductive technology norms are based on marriage and gender as the main qualification classification.Review of the principle of equality.Among them,according to the "univariate standard",the marriage classification and gender classification are examined on the principle of proportionality,and it is found that the restrictions are in line with the principle of appropriateness,but they cannot pass the examination of the principle of necessity and narrow proportionality.If a moderate review standard is applied to the classification of marriages based on the “multiple standards”,the limitation is in line with the purpose of pursuing substantive or important government interests from the purpose of the standard.There is no substantive relevance;strict review standards are used for gender classification.From the purpose standard,the restriction meets the purpose requirements of major and urgent interests;but from the means standard,the restriction does not meet the minimum invasiveness standard.Therefore,no matter whether it is based on the "universal standard" or the "multiple standard",my country’s restrictions on the qualifications of assisted reproductive derivatives do not meet the requirements of the principle of equality.