Legislative Resolution On The Conflict Of Gender Reproductive Rights

Marx believed that there are two forms of social production; one is the production of themeans of subsistence such as food, housing and some necessary tools, the other is theproduction of human being itself, namely the reproduction of human species. For long in thepast, reproduction was regarded as a natural behavior approximate to human instinct. With thedevelopment of society, the awakening of the awareness of citizens’ rights, as well as the riseof the feminism, reproduction gradually comes into people’s sight as a kind of right, gainingsocial attention and concerns.The conflict of rights to reproduction between sexes inevitably emerges from thephysiological and hierarchical distinction between them, which may hinder the right frombeing fulfilled. In practice, conflicts between gender reproductive rights come up now andthen. However, the absence of systematic and detailed rules about gender reproductive rightsin China’s laws leads to difficulties for the judge in finding legal basis. Therefore the study ofresolution on conflicts between gender reproductive rights is of practical significance.In addition to the introduction and conclusion, this article comes in four sections:Part I: The definition of reproductive rights. This section focuses on the definition andcharacteristics of reproductive rights, whereas the characteristics are discussed through threeangles including extensiveness of the subject, restriction of the content and personality of thenature.Part II: Analysis of the conflict between gender reproductive rights. This part starts fromthe definition of the conflict between gender reproductive rights, and then explores theessence and characteristics of the conflict, analyses its incentives of physiology, concept,reality and institution, and finally introduces its appearances including the arbitrary abortionof the female, compelled reproduction and denial of reproduction, etc.Part III: Systematic regulations of conflict between gender reproductive rights. Thissection focuses on the legal regulation of conflicts between gender reproductive rights athome and abroad，of which the approach basically lies in the restriction on abortion. Countriesin the Anglo-American and Continental law systems both lays restriction on abortion throughlegal rules or precedents, while holding different attitudes towards whether the female isentitled to induce abortion at its own will. In China the regulation is enforced by Article9in the3rd Interpretation on the Application of the Marital Code of PRC issued in2011by theSupreme Court. This article has set forth the author’s points from positive and negativeaspects, to be specific, the article above is positive in filling legislative gap, and is negative inimpeding equality of reproduction rights between sexes.Part IV: Legislative proposals on the resolution of the conflict between genderreproductive rights. This section first points out that conflict of gender reproductive rights doexist in reality, therefore a legislation approach is necessary; then it clarifies the legalprinciples that resolution of the conflict shall follow, namely the principle of equality, theprinciple of reasonable exercise of rights as well as the principle of equity of interests, andfinally it puts forward legislative proposals in three levels. The first level is the inclusion ofthe reproductive rights in the civil legal system structure to improve the system ofreproductive rights. The second level is the introduction of the birth agreement through whichto reduce and avoid the conflict between gender reproductive rights. The third level is theestablishment of legislative solutions to the conflict according to key points before and afterpregnancy in absence of the birth agreement, with an eye to the harmonious and successfulexercise of gender reproductive rights.