論法律上之母子關係

A Study on the Legal Mother-Child Relationship

我國就母子關係之成立，實務、學說向來採「分娩主義」，對「非分娩主義」之立法主義，並無太多探討，對於「分娩主義」背後存在的假設及前提，亦無足夠闡述。事實上，分娩主義雖有其合理性和一貫性，但採嚴格分娩主義而無相關輔助制度，對於生母殺嬰、棄嬰等問題之處理，可能缺乏彈性，亦可能於某些事例中，危害母子關係之安定性。另外，因人工生殖技術發展、母子關係多元化，近年來分娩主義背後的假設及前提，已漸次崩解。本文比較採分娩主義之我國法、德國法與日本法，以及採非分娩主義之法國法，探討各國於母子關係成立之異同及合理性，對於我國的嚴格分娩主義提出反省，並嘗試提出以意思主義為原則之修法建議。

In Taiwan, the female who gives birth to a child is deemed as the child’s mother. In other words, the establishment of motherhood always depends on the matter of giving birth. There is not much doctrinal nor practical discussion regarding other possibilities.
However, even though the “birth mother rule” has its rationality and consistency, some assumptions behind this theory are gradually becoming out of date due to the development of assisted reproductive technology and the diversification of mother-child relationships in recent years. Furthermore, strictly adopting the “birth mother rule” without exception may lead to infanticide, child abandonment, and child abuse. It could also harm the stability of the mother-child relationship in some cases.
This article compares Taiwanese law, German law, and Japanese law which adopt the “birth mother rule,” and French law which does not adopt the “birth mother rule” and examines the similarities and differences in the establishment of the mother-child relationship in these countries. This article further explores the current Taiwanese doctrine and practice and proposes legislative amendments suggesting that the establishment of the mother-child legal relationship should be based on the principle of will.