生育权理论前提之重构——析《妇女权益保障法》第51条

以对《妇女权益保障法》第51条的评析为平台,首先从法理逻辑结构和社会转型的现实两方面着手,论述生育权、身份权定位的不当之处;其次,以人格权为目标重构生育权的理论前提,并论证人格权作为生育权理论前提的合理性与必然性。《妇女权益保障法》第51条初步完成了立法层面生育权理论前提由身份权向人格权的转变,其深层内涵则透视出社会、国家和政府对妇女基本人权的认可与保障,体现了立法“以人为本”的主流观念。同时,也为社会转型过程中社会基本体制的构建提供了经验。

The Reconstruction of Theoretical Premise on the Procreation Rights——An Analysis of the 51st Item in Law on the Protection of the Rights and Interests of Women

Based on the analysis and evaluation of the fifth item in Law on the Protection of the Rights and Interests of Women, the paper first discusses the unreasonableness of determining the positions of the right of procreation and the status right from two sides： juridical logical structure and the reality of social transformation. And then the theoretical premise of the procreation rights is reconstructed according to the personality right which is regarded as the goal. Meanwhile, it is argued that it is reasonable and necessary to regard the personality right as the theoretical premise of the right of procreation. The 51st item has made a preliminary stride from the status right to the personality right on the legislation level of the theoretical premise of the procreation right, which reflects the approval and safeguard of society, country and government to the women＇s basic human rights, and embodies the major concept of people-oriented legislation. At the same time, this progress also provides some experiences for the construction of social basic system in the process of social transformation.