Research On The Procreative Right

The importance of procreation goes without saying for human being and its individuals. The ancients's saying of"There are three ways to be unfilial, the worst is to not produce off-spring"and"people are fundamental to nation"and the present caution of"Population Growth Capacity"all demonstrate : procreation is indispensable for the family's continuance and affective satisfaction of human being and its individuals; residents are an important elements of modern nation and adequate ones is an essential element for social stabilization and the production of production of material goods;meawhile,higher populations are not compatible for the production of material goods and imperil the environments.Until the 19 th century, the feminist movement has put forward the concept of procreation right and the right has begun to known for the people. After"the World War Two"especially after 1960s ,the procreation right has begun to be laid down in the positive law and international legal documents. In China, the right was acknowledged by law only about ten years ago. China is a higher population country which is in the period of social transition and approaches the"civil-right age",so the problem of procreation touches upon both the national economy and the people's livelihood and citizen's personal freedom and it is indeed a unnegligible problem. But we are still reach consensuses about many questions such as the meaning and nature of procreation right, the contents and the restriction of the right, the right of single men, criminal suspect of death penalty and homosexuality, the challenges of artificial procreation and colon ,the tort and the remedy of the right and so on.The doctorial dissertation which researches the procreation right by the numbers consists of seven chapters. Begin with the meaning of procreation, the article reviews the history of the right ; focusing on the nature of procreation right, the article mainly researches the meaning, nature , contents,conflicts and the restriction of the right;meawhile,from the jurisprudential perspective, the article analyses the reasonableness and desirableness of the criteria of legislative classification for the single men, criminal suspect of death penalty and homosexuality and investigates the relationship between the procreation right and the correlative personal rights(life right ,right of marriage, private right and right to know) , right of identity(conjugal right, parent's right),women's right(women's right of reproductive health and women's right of reproductive security) and right to social security. At last, the article studies the problems of artificial procreation and colon and the tort and the remedy of the right. Under the context of present social developments, the author maintains the procreation right is both a constitutional right(human right) in broad sense and a civil right and it is a personal right as a whole but it is also a identity right in married framework. Base on it and the universality of human right, the author tries to balance the national interests, social public interests and individual interests and studies the procreation right of single men, criminal suspect of death penalty and homosexuality in a rational and tolerate manner and investigates the rights and the frontier problems such as artificial procreation and colon which affect the realization of procreation right.The first chapter"Procreation As Reproduction of Human Beings Themselves"mainly discusses the meaning and the nature of the procreation right and analyses the importance of procreation for the human being according to Engels'"two kinds of production theories". The author maintains"procreation"of the"procreation right"has a narrow meaning,ie."child birth"which includes natural procreation and artificial procreation. The social property of procreation involves as follow:firstly,procreation is a subjective activity;Secondly,it is limited by the production system(relation of production and productivity);Thirdly, it is limited by the procreation system; Fourthly, it is limited by the social culture. Engels'"two kinds of production theories"shows the production of material goods and the production of human beings themselves are the two forms of social productions and they are interdependent , interknit and interaction each other and co-determine the developments of human society, so procreation as"the reproduction of human beings themselves"is supposed to fit into the reproduction of material goods. The"two kinds of production theories"is the guidance of my research and it demonstrates the importance of procreation and necessity of right of procreation and also shows the limitations of procreation right.The second chapter"the History Review of Procreation Rght"investigates the history of procreation right and'impacts on it in the West and China by the feminist movements which is a most important social element. There are three periods in the history: natural procreation, obligated procreation and procreation becomes a right. During the developments of the right, following elements are drive forces: transformations of production system and the process of modernization; the pressure of environment and the popularity of the idea of sustained development; the development of reproductive technology; the perfection of social security system; enhance of idea of right, especially the rise of the feminist movement. In the West, the concept of procreation right presents itself in the late of 19th century when the feminists claimed the right of becoming mother of their own accords. But it is not until the spring up of the second wave of feminist movement after the World War Two that the right was demonstrated by the numbers. The case of Skinner V Oklahoma(1942)of the US is the milestone in the course of thedevelopment of procreation right. Since then, the wave of legislation of the right has swept the whole world. Since the 1960s,some countries begin to accept the right in law. Since the 1970s,the right was laid down in the international legal documents. Because of the liberation of women's subject to the class of liberation and the deficiency of culture of right,the proposition of the right in China goes with the improvement of women's'status and the needs of social developments since the adoption of the opening-up and the reform.The third chapter"the Basic Question of Procreation Right"analyses the meaning,nature,subjects,contents,conflicts and restrictions of procreation right. Firtly,based on the jurisprudential analysis of the elements and the modality of right,the author maintains procreation right is a due interests ,claims, entitlement, capacity or freedom of determining the procreation of their own accords which is affirmed by moral, law or convention and is enjoyed by certain subjects.Secondly,the author maintains procreation right is compound and complicated right and it represent itself as follow: it is a basic human right or"natural right"; it is both a constitutional right and a civil right; it is a personal right as a whole but it is also a identity right in married framework. At last, the author researches the subjects,contents,conflicts and restrictions of procreation right. As far as the subjects are concerned, natural person has procreation right; Spouses are the most important subjects of legal capacity of procreation; others who have legal capacity of procreation also are subjects of procreation right. As for the contents of procreation right ,it consist of general capacity and limited capacity. The former includes the right of determining to procreate or not, the right of determining when to procreate and the right of prepotency health. The latter includes the right of choice of quantities of children, of gender and of the manner of procreation.Concerning the restrictions of procreation right, there are two forms of restrictions: physical restrictions and legal restrictions. The latter includes restrictions of age of procreation, quantities of children, choice of gender and the manner of procreation and so on.The fourth chapter"Procreation Right of Special Subjects"gives a premised jurisprudential analysis on reasonableness of classifications about the single men, criminal suspects of death penalty and homosexuality. At first, the author points that the procreation right of the subjects essentially involves the problems of ethic or values .So, we should stick to the principle of discourse and argumentation, avoid the"pan-moralism"to balance the individual interests and public interests and tolerate the minorities.Procreation right is personal right and constitutional right ,so we should prefect the all people'right of procreation equally and satisfy the different needs of procreation.It is unreasonable to classify men to be the married and the single according to marriage,to differentiate men to be criminal suspects of death penalty and the others according to whether in the prison or not and distinguish men to be homosexuality and the others according to sex orientation.The fifth chapter"Procreation Right and Other Rights Concerned"investigates the relationship between the procreation right and the correlative personal rights(life right ,right of marriage, private right and right to know) , right of identity(conjugal right, parent's right),women's right(women's right of reproductive health and women's right of reproductive security) and right to social security.As far as life right is concerned,the author mainly researches the life right of foetus.As for the right of marriage, the author investigates the relationship between marriage and procreation and analyses undergraduate marriage and same sex marriage. Futhermore,the author researches the relationship between procreation right and social security and analyses the importance of perfecting the social security system in China especially in the countryside.The sixth chapter"Several Questions about the Realization of Procreation Right"deals with artificial procreation and colon which affect the realization of procreation right and analyses the problems of the tort and the remedy of the right.The article researches the artificial fertilization in married framework, the conflicts resulting from surrogate pregnancy,the conflicts between right to know and private right in the artificial procreation and conditions of procreation manner of clone. In addition,the author discusses the composition conditions,types and remedy manner of trespass on procreation right.The seventh chapter"Conclusion:Perfecting the Legal System of Procreation Right of Our Country"gives a pilot study on the existent problems of procreation right in China based on the conclusions mentioned above.