死後取精生殖之法律爭議

A research on Legal Issues of posthumous sperm aspiration and reproduction

我國現行人工生殖法禁止死後取精生殖，又依據我國人體器官組織細胞輸入輸出管理辦法之規定，取精後輸出國外再為人工生殖，亦非可行。開放死後生殖與否，學者間爭論不休。持否定見解者，多以其自幼失怙及無法繼承，認為開放不符合人工生殖子女之最佳利益。而持開放見解者，則認為應保障死者生前意願、生育自由，以及請求者之生育自由為由而支持開放。本文擬就外國法制予以介紹比較，從德國法的不許開放並科予刑罰至一定條件開放之澳洲維多利亞省之法律，值得我國借鏡，並提出我國應朝向澳洲維多利亞省之法律，即符合一定條件下，應予開放之方向邁進。又開放死後取精人工生殖之爭議，分別將從精子、屍體之法律性質、請求人工生殖之主體、死者意願之確認及人工生殖子女之地位保障等面向來加以討論，關於死者生前意願部分，應限於死者生前以書面表示同意死後取精並人工生殖為限，不包含可得推知之情況，避免適用之煩。而為保障生存配偶之生育自由，故其自得為請求死後取精生殖之主體，然為尊重死者生前意願，故倘其生前明白表示死後生殖主體為非配偶者，亦應加以尊重。另在人工生殖子女地位部分，本文認為倘為生存配偶所生，應賦予其與婚生子女之相同地位;倘非配偶所生，則可類推適用民法第1067條第2項之規定，對死者之繼承人提起強制認領之訴而成為婚生子女。而在繼承部分，不論是否為配偶所生，應適用民法第1069條之1規定，即以出生時所存之遺產為限。又基於對死者生前意願之尊重、死者與請求者生育自由之保障下，應認為當有符合（1）死者生前書面表示同意死後取精生子，及（2）其亡故後，請求者接受一定諮詢仍確信從事人工生殖時，應開放人工生殖。而請求者在請求人工生殖時，除出具死者生前同意書外，應使請求者接受相關諮詢，包含心理層面、法律建議及醫學知識等之，確保請求者之意願，以有效保障人工生殖子女之利益。 The posthumous sperm aspiration and reproduction is strictly prohibited so far. However, according to the regulations for Human organs and tissues imports and exports, it is also illegal to aspire the sperm domestically, export then complete the artificial reproduction abroad . There is a debate about the legitimacy of posthumous reproduction. The cons hold the opinion that the best interest of the artificial reproduction children, who lose their father while they are still very young and do not enjoy their legal right of inheritance is expelled.The approach of the context is to introduce and compare with different foreign laws, ranging from the German way which incriminates and prohibits to the VIC way which decriminalizes in condition in Australia. The laws above are lessons to us, and the conclusion of the thesis is to take the latter. The debate of posthumous sperm aspiration and reproduction can be discussed in the following aspects, which are the legal nature of sperm and body, the subject who submit an application, the confirmation of the deceased's will and the legal status and rights protection of the artificial reproduction children.In order to protect the living spouse’s freedom to give birth, who is deemed to be the applicant of posthumous reproduction. Whereas, to respect the deceased's living will, the subject of posthumous reproduction shall not limit to non-spouse. The status of the artificial reproduction children shall be entitled as that of the legitimate children if they are given birth by the living spouse. However, if they are born with the condition aforementioned condition, the Civil Code Article 1067.2 shall be applicable, which entitle the artificial reproduction children to appeal mandatory acknowledgment against the deceased's successors to be legitimate. No matter the children are born by spouse or not, according to the Civil Code Article 1069-1，the succession to property shall limited to the extent of the property which existed at the moment of live birth.

The posthumous sperm aspiration and reproduction is strictly prohibited so far. However, according to the regulations for Human organs and tissues imports and exports, it is also illegal to aspire the sperm domestically, export then complete the artificial reproduction abroad . There is a debate about the legitimacy of posthumous reproduction. The cons hold the opinion that the best interest of the artificial reproduction children, who lose their father while they are still very young and do not enjoy their legal right of inheritance is expelled.The approach of the context is to introduce and compare with different foreign laws, ranging from the German way which incriminates and prohibits to the VIC way which decriminalizes in condition in Australia. The laws above are lessons to us, and the conclusion of the thesis is to take the latter. The debate of posthumous sperm aspiration and reproduction can be discussed in the following aspects, which are the legal nature of sperm and body, the subject who submit an application, the confirmation of the deceased's will and the legal status and rights protection of the artificial reproduction children.In order to protect the living spouse’s freedom to give birth, who is deemed to be the applicant of posthumous reproduction. Whereas, to respect the deceased's living will, the subject of posthumous reproduction shall not limit to non-spouse. The status of the artificial reproduction children shall be entitled as that of the legitimate children if they are given birth by the living spouse. However, if they are born with the condition aforementioned condition, the Civil Code Article 1067.2 shall be applicable, which entitle the artificial reproduction children to appeal mandatory acknowledgment against the deceased's successors to be legitimate. No matter the children are born by spouse or not, according to the Civil Code Article 1069-1，the succession to property shall limited to the extent of the property which existed at the moment of live birth.