失独家庭有限代孕权利的国家保障

我国失独家庭数量甚为庞大，其特殊保障问题已为社会关注热点，尤其是最为突出的再生育问题。由于失独家庭大都丧失生育能力，代孕乃是其实现再生育的主要途径。基于失独家庭的特殊性，对其有限开放代孕并不违反伦理道德，在法理和情理上也均具有合理性，且失独家庭因遵守国家计划生育政策而承受了失独的不利后果，故其选择代孕方式实现再生育的行为应当获得国家保障。国家不仅应当通过代孕类型、代孕条件、代孕程序等方面的制度构建来保障代孕的有序运行，还应通过扶助模式、扶助资金、扶助标准等方面的制度构建来对失独家庭代孕予以必要救助。

Government Guarantee for the One-child Lost Family’s Limited Access to Surrogacy

As more and more single child have lost their lives due to diseases, disasters, suicides, traffic accidents and other uncontrollable causes, the number of families that have lost their only child have been growing continuously to a quite large scale so far. The death of the single child of a family could bring devastating mental trauma for parents and other elders in the family. On one hand, as most of the parents who lost their single child usually do not have the capability of fertility any more, their pain for the loss of their child could not be repaired by giving birth to a second child. On the other hand, the one-child lost parents have very limited means to have another child, for the service of surrogacy has been ethically and legally controversial since its birth. With a view to the special situations regarding the one-child lost family, giving them a limited access to the service of surrogacy is not against ethics or morality, and also has a reasonable and legitimate foundation. Moreover, the one-child lost family has suffered the adverse consequences of losing their single child due to their compliance with the family-planning policy, so their resort to surrogacy for another child should be respected and protected by the government. The government, instead of simply insisting that a woman’s disposition of her own body is illegitimate, should grant to the one-child lost parents their limited rights to resort to surrogacy after a consideration of specific situations for the family. That the relatives or friends of the one-child lost parents, for the sake of kindness and friendship, voluntarily and gratuitously bear a child for the parents will not only do no harm to the country, society and the third party, instead, the woman who offers surrogacy may also gain social recognition. Based on the principle of reasonable exceptions, allowing to provide limited gestational surrogacy, which does not cause any disorder in the order of parent-child relationship, to the one-child lost parents accounting for a small number of the whole population will not impact the social order. The government also has corresponding responsibilities in safeguarding the family’s limited access to surrogacy. To the one-child lost parents, their productive right protected by the constitution is the very right to give birth to a second child, which thus needs to be protected and realized by the government with active measures. To protect the right of reproduction for such a kind of family, the government should not only help to solve their economic difficulties and the difficulties of being raised without a child when they are old, but also, in a fundamental manner, solve their mental trauma and pain caused by the loss of their single child. In addition, from the perspective of making a balance between rights and obligations, since the government has enjoyed the dividend of family planning policy, it should assume the responsibility of protecting the one-child lost family and making compensations for the family who have made great sacrifices for the family planing policy. To this end, the government, instead of exercising absolute prohibitions on surrogacy, should, via institutional arrangements, mobilize all forces available and offer to the one-child lost parents an limited access to surrogacy. Moreover, providing quality medical services for surrogacy is more conducive to ensuring the health of the woman who offers surrogacy and the baby. Therefore, an orderly operation of the system of offering surrogacy to the one-child lost family need a national level institutional arrangement. Necessary limitations should be exerted on the offering of surrogacy to the one-child lost family, including the regulation of the type of surrogacy for the one-child lost family, the prohibition of commercial surrogacy, gene surrogacy, and traditional surrogacy, and the establishment of the principle of guaranteeing the best interest for the child. Also, the application of surrogacy, the signing of surrogacy contract, the supervision of surrogacy, and the determination of the time to terminate surrogacy should also be regulated when the service of surrogacy is offered to the one-child lost family. On one hand, the one-child lost family has the right to receive the assistance offered by the government. On the other hand, the government should establish an assistance system for the family. The one-child lost family should apply to the subject of the assistance and meet certain procedural requirements before they can get the assistance for surrogacy. In order to ensure those who get the assistance are truly one-child lost families, it is necessary to ensure that the information provided by the applicants is true and accurate by means of conducting telephone interviews, face-to-face conversations and home visits to them. Also, the government should establish a fund for assisting the one-child lost family to have surrogacy, with the government dominating the supply of the fund and mobilizing the participation of social forces, strengthen the management and supervision of funds to ensure the safety and use of funds. The fund offer the basic support for the family and the government should, in an equal manner, bear basic necessary costs for the family. The government should provide necessary assistance as long as the targeted family meet the requirements and make applications.