Demonstration of reproductive rights as personality rights in the post Civil Code era
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D923

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    Abstract:

    Although Article 110 of the Civil Code does not expressly establish the reproductive rights, its openness provides an institutional space for the status of personality rights of reproduction rights. The legitimacy of reproductive rights stems from freedom value. At present, the concept of fertility in China has basically completed the absorption of the value of reproduction freedom while preserving the traditional family culture. The reasonable regulation of reproductive rights by public law does not deny the establishment of it in private law. Although the reproductive behavior needs the cooperation of men and women, the choice of whether to have children is essentially made by individuals, so the reproductive right belongs to natural persons as individuals, not to couples as a whole. Meanwhile, even if men are physically unable to have children, whether the wives are pregnant is directly related to the husbands' family planning, husbands also have the right to participate in deciding whether to have children, which is particularly obvious in the field of human assisted reproduction, so men also belong to the subject of reproductive rights. There are essential differences between reproductive rights, body rights and health rights. Although the exercise of reproductive rights often rests on the control of one's own body, just as the right of marriage autonomy and freedom of contracting has long been differentiated from the basic right of "freedom of action", reproductive rights should be distinguished from body rights because of their extremely unique connotation and extension. The difference between reproductive rights and health rights is obvious. The former is a free personality right, while the latter is a material personality right, and their value pursuit is completely different. Reproductive rights are typical, and the public has already reached a general consensus on the importance of reproductive freedom. Judging from the existing judgment documents, the concept of reproductive rights has also been widely used in judicial practice, and the protection system for reproductive rights has gradually improved. Reproduction rights conform to the general justification standard from interest to rights. Treating reproduction rights as personality rights is not the generalization of rights. Reproduction rights belong to the type of personality rights that not listed in Article 110 of the Civil Code.

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李倩,张建文.后民法典时代生育权的人格权地位证成[J].重庆大学学报社会科学版,2023,(3):212~223

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  • Online: July 13,2023
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