The Research On The Special Subject Of Reproductive Rights

With the development of China's society, special groups'reproductive right has gradually attracted the attention of academics and public people. It is not only a real problem, but also a theoretical issue. In theory we need to question what is the nature of reproductive right? Is it a constitutional right or a civil right, or, a kind of personal right or a kind of identification right? How to determine the subject of reproductive right? Is the individual as the general subject or couples based on marital relationship? These theoretical issues are directly related to whether these special subjects such as single women, married men, death row prisoners, and gay groups have reproductive right and how they realize it. In this paper, guided by above-mentioned issues and theoretical clues, the author tries to make her own effort to the solution to the problem of reproductive right of special groups.This paper is divided into four parts, in the first chapter the author discusses in detail the concept of reproductive right and the controversy about the nature of reproductive right earlier. As a specific form of rights, reproductive right includes a set of interests, ideas, qualifications, capabilities and freedom. Reproductive right has nothing to do with sexuality. Therefore, the author defines reproductive right as qualifications or freedom by which natural persons can decide whether and how they exercise the reproductive right in accordance with their free will. This definition shows the breadth of reproductive right subject and the particularity of the main content that natural persons have the reproductive and non-reproductive freedom and the means by which to exercise their reproductive right. This definition lays the foundation for the further discussion about the nature of reproductive right. The author believes that reproductive right a natural right based on people's natural physical attributes. It is also a moral right and a legal right. The current debate about reproductive right is focused on reproductive right is a constitutional right or a civil right, a kind of personal right or a kind of identification right (right of spouse) as a civil right. My general view is that the reproductive right as a public right or a private right is not clearly distinguished, and, the reproductive right is both a constitutional right and a civil right. The property of reproductive right as a constitutional right is rooted from its natural right nature, and we define the reproductive right as a civil right because only be defined as a civil right can such a constitutional right receive specific protection. The reproductive right as a constitutional right and a civil right are complementary and mutually supporting. In the civil rights dimension,the author holds that the reproductive right can only exist in the form of personal right. Firstly, in theory, only the personal right can guarantee the universality of the person who has right, which is consistent with the nature of constitutional rights and natural rights of the reproductive right. Secondly, in real life, we can protect the reproductive right of special groups only when we define reproductive right as a personal right, and if we limit the reproductive right to the identification right we will not achieve the above purpose, which is inconsistent with the trend of social development.In the second chapter, I try to read the subject of reproductive right focusing on the historical evolution and social development level. In fact, this chapter is consistent with the first chapter focusing on the theoretical analysis and the third chapter. The author believes that the transformation about the subject of reproductive right from women to couples is a historic progress. These definitions have played an important role in protecting women from the traditional Chinese culture's discrimination, securing a relatively weak position of women. At the same time, these definitions also have provided a feasible solution space for men's reproductive right within the framework of marriage. However, I still think that views mentioned above are just confined to the identity of natural person. On the one hand, they ignore the demand for reproductive right of special groups accompanying with the social development, on the other hand, they ignore the means to solve special groups'reproductive right problems brought about by modern scientific and technological development. Therefore, I believe that the subject of reproductive right must be natural person, including couples, and is universal. This is not only determined by the reproductive right's natural right property, but also by the trend of historical development and social evolution.The third chapter is the focus of this paper. According to the view of the first two chapters, the subject of reproductive right is universal. But we can not deny that the procession of reproductive right and the exercise of the right are two different issues. The reason why the reproductive right of special subjects has aroused so much controversy is that special subjects lack the fundamental possibility to exercise their right under existing conditions. Therefore, we must combine both the experience level and normal level to argue the reproductive right of special subjects. The author in this chapter focuses on four specific groups, namely, single women, married men, prisoners as well as gay groups. For single women, I mainly argue that the traditional view about single women's reproductive right is wrong. The "double-blind" system adopted in the artificial reproduction of course may lead to the consequence that their offspring may get married with their close relatives, but this possibility is too small to occur, and can be excluded through pre-marital medical examination by their descendants. In addition, so long as the family and school, society can produce a good interaction, the cultivation of single women's offspring will not be a major obstacle, and the child's socialization process will be completed smoothly. Married men's reproductive right will also not lose the possibility of legal protection in the framework of consultation with his wife during marriage. I think that, for some negative cases, for example, when the husband wife have already agreed on some matters on giving birth to their children, if the woman does not notice the man in the case of unauthorized contraception, abortion, resulting in the loss of her husband's reproductive right, a married man has the right to take legal action to protect his reproductive right. The author focused on the reproductive right of prisoners who are sentenced to death. I believe that our criminal law deprive of the right to their life rather than their reproductive right, otherwise their innocent spouse's reproductive right will be jointly and severally deprived. The specific solutions are mainly artificial insemination or a third party on behalf of the pregnant. The author ascertains the gay group's reproductive right. I mainly focus on some empirical data to prove the proposition that offspring raised by the homosexual family can be trained as excellent as the children who are brought up by the normal family, and its possible negative consequences will be reduced to the minimum. To sum up, these special groups'reproductive right can not be ignored.In the fourth chapter, the author discusses the institution construction of the special groups'reproductive right. I discuss above subjects mainly from the introduction of legislation relating to human assisted reproduction, the definition of reproductive right in our country's "Civil Code" in the future as well as the amendment of "Code of Criminal Procedure" and "Prison Law" . In the first aspect, I propose that we should enact several judicial interpretation and legislation (when the time is ripe). Specifically speaking, we should make these regulations from the inheritance, the right to know, kinship, the privacy of some relevant persons and the construction of the administrative licensing system of medical institutions. In the second aspect, I think that the current legislation exist two drawbacks: Firstly, the current relevant legislation are just some of principle or policy provisions, lacking the definition of reproductive right, subject, scope and contents. Secondly, these regulations are just the public law rather than civil law, and this situation has led to the productive right of citizens can not be specifically protected. Therefore, we need to stipulate the nature of reproductive right and its subject, scope, content in detail in the Civil Code in the future so that we can have legal reference when we face the situation such as moral damage compensation issues. In the third, I mainly targeted at the special group of death row prisoners. My view is that there is a great space to realize the reproductive right of male death row prisoners, while there are still great difficulties to overcome for the female death-row inmates no matter technical aspect or ethical aspect. The author holds a passive attitude to the possibility of the exercise of reproductive right of female death-row inmates.