代孕子女法律上親子關係之研究（上）

國人基於「不孝有三，無後為大」傳宗接代的觀念根深蒂固，代孕縱使法律未開放，仍無法遏止受術夫妻尋求代孕以一圓子夢，則所生子女法律上身分如何？一切親屬的法律關係，皆是以人倫秩序為其基礎，然基於代孕契約，將其所生子女視為受術夫妻子女，其效力若何？代母雖自始即無擔任母親之意思，但固有親子法制中「生母恆定」原則，仍應視為法律上之母乎？現行親屬法對親子關係之認定應讓位嗎？倘依現行親屬法論斷其親子關係，能否尋繹出一個邏輯上可以貫通的答案！尤其在未有新立法規定以前，如何依據親屬法解釋代母所分娩子女之身分？能否透過認領或收養途徑，甚至直接認定為受術夫妻子女，來「正名」孩子身分乎？各方提出不同認定基準，則能否尋得妥適而有基本共識的見解，為代孕子女身分找尋出路？縱使代孕生殖於我國尚屬非法之際，基於子女最高利益為指導原則，子女身分利益之追求自不能棄置不顧。

關鍵字

子女最佳利益原則；血緣原則；分娩者為母；契約取向；立法

並列摘要

There are many controversial issues in legislative suggestions about surrogate pregnancy. However, based on Chinese tradition culture ＂without descendent is the most unfi lial conduct in the family,＂ many infertile couples seek surrogate pregnancy that has not been legal. What's next about the legal status of the child by surrogate pregnancy? As matter of fact, all the legal relation of the family is based on ethics of human relationship. According to the surrogate pregnancy contract, the legal right of motherhood was transferred from the biological mother to the recipient couple. What's the legal effect of this contract? Would this contract have legal effect as to the parent-child relationship? Biological mother would not have the intent to be a mother for the child by surrogate pregnancy at first when made the contract surrogate pregnancy. Nevertheless, by the core doctrine ＂Mater semper certa est＂ i.e., legitimating motherhood by the fact of delivery in our family laws of Civil Code, would the biological mother be the legal mother of the child by surrogate pregnancy? Should the decision of parentchild relationship in family law of Civil Code be compromised? By deciding parent-child relationship, would family law be inferred as a logical answer for the questions above? Especially, when the legislation has not done yet, how to explain the legal status of the child by surrogate pregnancy in traditional Family Law is a new agenda. Is this possible to resolve this problem by acknowledgement or adoption even acceptation as a legitimate child of the recipient couple? Moreover, there might be different legal status of the child by surrogate pregnancy because of different type of the artificial reproduction. Would it possible to find out a appropriated and consensus legal opinion about the legitimacy for the child by surrogate pregnancy? Although the surrogate pregnancy in our nation has not been legislated, base on the child interest as a supreme principal, we have to maintain the interest of the child legal status.