代孕法治化進程中的若干思考

Some Thoughts on the Process of Rule of Law in Surrogacy

作為“女性不育最後救濟”的代孕，自20世紀80年代以來風行全球，也引發了科技與倫理和法律的碰撞。面對洶湧的社會需求，我國的衛生行政主管部門以部門規章的形式對代孕進行了全面封堵，十餘年過去非但未能使其絕跡，反而催生出一個繁榮的地下黑市。2015年底《人口與計劃生育法》修訂過程中“禁止代孕”是否入法的存廢之爭，更把代孕合法化問題推上了風口浪尖。代孕的出現，不僅挑戰人類既有的道德倫理觀念，更是對現代社會管理體制的重大考驗。縱觀世界各國，唯有通過完善的法律制度予以合理引導，才能有效根除黑色產業鏈，保障代孕各方的合法權益。但代孕法治化進程不可能一蹴而就，代孕的開放要根據我國社會文明的發展漸進而行，相關配套制度的建設不可或缺，還要與婚姻家庭、醫療衛生等領域的法律法規良性銜接。

As 'the last relief of female infertility', surrogacy has been popular all over the world since 1980s, which triggered a collision between science, technology, ethics and law. Facing the surging social demand for surrogacy, Chinese health administrative authority fully blocked it in the form of departmental rules. However, over the past ten years, surrogacy did not extinct, but rather created a thriving underground business. The dispute of 'ban on surrogacy' in the process of amending the population and family planning law at the end of 2015 pushed the legalization of surrogacy issue to the cusp. The emergence of surrogacy, not only challenges our moral and ethical concepts, but tests our modern social management system as well. A sound legal system is needed to guide the surrogacy activities so as to effectively eradicate the black industry chain and protect the legitimate rights and interests of the parties, while the rule of law in surrogacy could not be achieved overnight. Gradually allowing surrogacy shall be in line with the development of Chinese civi1ization with perfect connection to the laws and regulations in the areas of marriage and family, health and technology, and the construction of related systems is indispensable too.