代孕对不孕夫妻家庭关系影响的伦理探究

代孕引发争议的原因之一是,代孕可能破坏夫妻关系,使母子关系复杂化。辨析了代孕对不孕夫妻家庭关系产生的伦理问题,首先,代孕女性不同于介入婚姻关系的"第三者";其次,以代孕破坏夫妻关系的潜在、不确定风险为由反对夫精妻卵妊娠型代孕令人难以信服;再次,辨析代孕产生的两个母亲身份看似复杂但分工明确,有利于保障代孕子女的生命与成长利益;最后,提出代孕对家庭关系伤害的最小化在一定程度上依赖于中国社会的家庭文化宽容度。     

从合作生殖的视角对代孕生殖含义的伦理辨析

代孕生殖技术已有三十多年的历史,一直备受争议。代孕生殖的技术概念包括完全代孕和部分代孕两类。基于遗传学联系、情感联系和伤害风险的考量,只有不孕夫妻提供精卵、代孕女性孕育分娩的完全代孕在实践中可行。同时,基于合作生殖的视角,虽然代孕生殖可能引发人们对传统婚姻伦理和亲情伦理的种种论争,但是通过完全代孕技术帮助不孕夫妻的代孕女性不是破坏婚姻关系的所谓"第三者",代孕女性"生而不养"的事实亦不应被斥责为不道德。     

代孕的合法化之争及其立法规制研究

代孕,无论在生命伦理学界还是在生命法学界都引发了巨大争论。在代孕应否合法化问题上,学术界存在"应合法化说"与"不应合法化说"两种针锋相对的学说,这两种学说都基于各自的立场提出了相应的论据。立足于伦理与法律关系的角度,伦理是法律的基础,法律对于代孕的定位应取决于伦理对于代孕的定性。而在伦理上,代孕是一种违背人类天性的不合理行为。对于这种行为,法律应当予以禁止。从各个国家和地区的代孕规制立法来看,代孕应当为立法谨慎规制。当前,我国对代孕采取了完全禁止的规制模式,但在具体制度设置上还存在一些不足,需要进一步完善。     

伦理与法律对冲下的代孕思考

人类辅助生殖技术的进步使代孕成为可能,因女性子宫机能障碍而丧失生育能力的夫妇可以借别人的子宫获得与自己有遗传关系的子女,因而代孕有其社会必然性,合理的非商业化的代孕渐被多数国家接受并立法。我国禁止任何形式的代孕,但是近年来国内不少地区代孕现象屡见报端。通过对代孕现象的探讨分析,建议应从对社会和个人有利的原则出发,制定相应的伦理规范和严格的法律政策,允许代孕技术的合理应用。     

台湾地区“代孕”立法最新进展及其启示

2007年3月21日,台湾地区在广泛调研、民主决策的基础上,终于颁布实施了《人工生殖法》,使争论已久的代孕人工生殖问题与《人工生殖法》正式脱钩,另行规制;此前,《代孕人工生殖法》草案也已经出笼,拟有条件开放代孕人工生殖。相关草案对代孕者、受术夫妻、代孕中介、代孕契约、亲子关系等问题都进行了具体规定。台湾地区的立法经验对祖国大陆完善包括代孕在内的人工生殖法具有一定的借鉴意义。     

代孕女性工具化问题的伦理辨析

代孕女性工具化问题是代孕研究的一个核心问题。代孕反对者认为代孕女性为他人生殖后代,被当作生殖工具,使代孕女性的人格尊严受到贬抑,因此代孕是不道德的。本文基于生殖能力本身具有工具属性的客观事实,从代孕女性和代孕需求方的代孕目的、代孕女性与代孕胎儿的情感异化、代孕女性与代孕婴儿的分离异化三个方面,辨析代孕女性工具化问题的含义及其伦理问题,尝试论证代孕女性未被仅仅当作生殖工具。     

法理视角话代孕——兼析《人类辅助生殖技术管理办法》第三条第二款

可行性上,代孕的社会需求旺盛、社会供给充沛、技术成熟可行;认同度上,除国家卫生健康委员会及其禁令管辖系统范围内,民、商、学和实务等社会各界更多取向认可和开放(有偿)代孕。试图对代孕本身及其相关主体、现制和社会意识进行法理学上不设预定的求证与解析,尽可能探求出一有据、可信且具说服力之答案,最终得证——有偿代孕不具正当性。该论证过程的另一副产品为《人类辅助生殖技术管理办法》第三条第二款在法理上合法、有效,虽有瑕疵但可补正。     

认定代孕子女亲权关系的基本准则浅析

代孕虽被禁止,但代孕引发的亲权纠纷时有发生。判断代孕子女亲权关系的焦点问题是应当以什么标准来界定代孕子女法律上的父母亲权关系。就该问题,目前四个判断标准,血缘说认为谁是卵子提供者谁是母亲;分娩说认为谁分娩谁是母亲;契约说认定根据当事人之间的约定判断谁是母亲;子女最佳利益说认为应当根据对代孕子女的最佳利益标准来认定亲权关系。以真实案例为背景,辨析判决结果,认为在现有的法律框架和社会环境下,应当以维护子女最佳利益为目标,综合考虑辅助生殖技术的初衷、公序良俗等因素,针对不同情况,适用不同的认定标准。     

从规范代孕角度浅析代孕当事人的主体资格

2015年《人口与计划生育法》修订中"禁止代孕"入法失败,"规范代孕"被提出,代孕制度立法困难凸显。实践中,"禁止代孕"未取得预期效果,海外代孕和非法代孕增多。无锡"冷冻胚胎案"后,胚胎如何处理促使代孕成为讨论焦点。在社会价值基础发生转变的前提下,基于法理、伦理、法经济学的立法考量分析规范代孕,并从年龄、婚姻、健康等方面对受术夫妻和代孕母亲的主体资格进行规制。在适用范围上允许不孕不育患者申请代孕,达到代孕与社会实际需求的融合,形成良性有序的代孕医疗制度。     

完全代孕合法化的合同路径

无锡冷冻胚胎权属纠纷案引起全国的广泛关注,老人是否可以通过代孕完成血缘延续,引发了广泛讨论。代孕协议属于民事合同,该协议的权利基础在于代孕人的一般人格权。代孕协议符合意思自治、公序良俗,不违反法律强制性规定,应为有效。代孕人的义务有代为怀孕分娩并返还婴儿给委托夫妻、适当的注意义务。代孕人的权利有获得报酬的权利、风险发生的损害赔偿请求权。代孕人的违约责任不宜过重。通过合同的代孕治理包括代孕协议当事人资格受限、代孕协议需要备案。     

Ethical Issues in Gestational Surrogacy

The introduction of contraceptive technologies hasresulted in the separation of sex and procreation. Theintroduction of new reproductive technologies (mainlyIVF and embryo transfer) has led not only to theseparation of procreation and sex, but also to there-definition of the terms mother and family.For the purpose of this essay, I will distinguishbetween:1. the genetic mother – the donor of the egg;2. the gestational mother – she who bears and gives birth to the baby;3. the social mother – the woman who raises the child.This essay will deal only with the form of gestationalsurrogacy in which the genetic parents intend to bethe social parents, and the surrogate mother has nogenetic relationship to the child she bears anddelivers. I will raise questions regarding medicalethical aspects of surrogacy and the obligation(s) ofthe physician(s) to the parties involved. I will arguethat the gestational surrogate is “a womb to rent,”that there is great similarity between gestationalcommercial surrogacy and organ transplant marketing.Furthermore, despite claims to freedom of choice andfree marketing, I will claim that gestationalsurrogacy is a form of prostitution and slavery,exploitation of the poor and needy by those who arebetter off. The right to be a parent, although notconstitutional, is intuitive and deeply rooted.However, the issue remains whether this rightoverrules all other rights, and at what price to theparties involved. I will finally raise the followingprovocative question to society: In the interim periodbetween today's limited technology and tomorrow'sextra-corporeal gestation technology (ectogenesis),should utilizing females in PVS (persistent vehetativestate) for gestational surrogacy be sociallyacceptable/permissible – provided they have leftpermission in writing?     

Procreative liberty, biological connections, and motherhood.

Given the complex and dramatic array of issues currently facing us in reproductive ethics, bioethicists working on the topic might be forgiven feelings of trepidation when they cast their minds toward the next century. Currently, technologies such as artificial insemination by donor (AID), once the source of intense controversy, are used on a routine basis; mainstream newspapers carry advertisements offering "excellent compensation" to ova "donors;" courts are arguing whether women who serve as gestational or "surrogate" mothers have any parental rights; and proposals resurface to jail pregnant women who take street drugs. Sorting out which developments are to be welcomed and which are to be resisted -- and why -- will require us not only to clarify some of our most basic value commitments, but also to reflect on our understanding of concepts, such as motherhood, that we previously had the luxury of thinking obvious. Let me highlight two issues I think we will be forced to confront as we try to navigate the ethics of reproduction into the twenty-first century -- namely, the value of biological connection and the meaning of motherhood.     

Conceptualising Decadent Technology: A Case Study of Path Dependence in Radiotherapy

Abstract

Large-scale investments in health technologies often have limited evidence for effectiveness when first introduced. Nevertheless, professional and public discourses often present the advantages of such investments, with unknown risks, as necessary and entailing significant improvement. Such discourses are evident with the introduction of the Linac Adapted Conebeam Imager (LACI), introduced to improve the accuracy of radiotherapy treatments. From one perspective, the introduction of such technologies can be considered to be decadent since there is limited, if any, evidence of improvement of current standards and procedures, yet they are promoted as the latest and best technologies for solving societal problems. Connecting the concepts of decadence to those of path dependence, through the case of the LACI, enables the exploration of the ‘technical interrelatedness’ of technological changes. Building on the concept of path dependence, it is possible to demonstrate how introducing a closely related technology does not only become a low-risk course of action. Rather change is demanded (but not determined) as well as potential alternative systems being obscured. With decadent technologies, any future changes are not only dependent upon past introductions; but also they create a need for future changes. Such a view demonstrates how these technologies may not necessarily offer any improvements, but rather contribute to the creation of ongoing demand for unproven technologies. As a result they may encourage the introduction of increasingly complex technologies.     

Current and future issues in assisted reproduction.

The last quarter of the twentieth century has given rise to reproductive technologies and arrangements that in the earlier part of the century could only be dreamed of by the authors of science fiction. We stand in the middle of this reproductive revolution, trying to cope with the developments that have already occurred but with an uneasy sense that the future may be even more complicated ethically than the past and the present. In this brief essay, I will survey recent ethical and public-policy discussions of two reproductive techniques (assisted insemination and in vitro fertilization) and one reproductive arrangement (surrogate motherhood). After distinguishing three phases in the normative debate, I will briefly comment on some of the characteristics of, and continuing ambiguities in, the ethical debate of the past 25 years. At the conclusion of the essay, I will attempt to anticipate three future issues in ethics and reproduction.     

Restorative effects of virtual nature settings

Previous research regarding the potential benefits of exposing individuals to surrogate nature (photographs and videos) has found that such immersion results in restorative effects such as increased positive affect, decreased negative affect, and decreased stress. In the current experiment, we examined whether immersion in a virtual computer-generated nature setting could produce restorative effects. Twenty-two participants were equally divided between two conditions, while controlling for gender. In each condition, participants performed a stress-induction task, and were then immersed in virtual reality (VR) for 10 minutes. The control condition featured a slide show in VR, and the nature experimental condition featured an active exploration of a virtual forest. Participants in the nature condition were found to exhibit increased positive affect and decreased stress after immersion in VR when compared to those in the control condition. The results suggest that immersion in virtual nature settings has similar beneficial effects as exposure to surrogate nature. These results also suggest that VR can be used as a tool to study and understand restorative effects.     

On the vicissitudes of early primary surrogate mothering

I have noted estrangement from biological mothers and intolerance of intimate relationships in patients with an early history of primary surrogate mothering. This observation facilitated discovery of such early histories in 31 of 102 patients I examined during a five-year period. With a review of the literature, and clinical examples, I attempt to associate the estrangement and intolerance with the mother's exclusion resulting from her infant's close tie to a surrogate and the infant's inevitable traumatic loss of the latter. In the analyses of screen phenomena, mother and surrogate mother transferences, all peculiar to that caretaking, the surrogate is seen to emerge from obscurity. In the clinical examples (limited to losses of surrogates following the infant's eighteenth month) screen memories, dreams, and eclipse are found to possess a common feature: the image of the surrogate is screened by that of the mother. Biological mother and, in the countertransference, the analyst play a significant role in perpetuating the concealment of the surrogate.     

Surrogate consent to non-beneficial research: erring on the right side when substituted judgments may be inaccurate

Part of the standard protection of decisionally incapacitated research subjects is a prohibition against enrolling them unless surrogate decision makers authorize it. A common view is that surrogates primarily ought to make their decisions based on what the decisionally incapacitated subject would have wanted regarding research participation. However, empirical studies indicate that surrogate predictions about such preferences are not very accurate. The focus of this article is the significance of surrogate accuracy in the context of research that is not expected to benefit the research subject. We identify three morally relevant asymmetries between being enrolled and not being enrolled in such non-beneficial research, and conclude that when there is a non-negligible probability that surrogates’ predictions are wrong, it will generally be better to err on the side of not authorizing enrollment.     

Marginally Represented Patients and the Moral Authority of Surrogates

Abstract

Incapacitated adult patients are commonly divided into two groups for purposes of decision making; those with a surrogate and those without. Respectively, these groups are often referred to as represented and unrepresented, and the relative ethics of decision making between them raises two particular issues. The first issue involves the differential application of the best interests standard between groups. Second is the prevailing notion that representedness and unrepresentedness are categorical phenomena, though it is more aptly understood as a multidimensional and continuous variable based on relational moral authority. This paper examines the nature of representedness as it relates to ethical norms of surrogate decision making.     

Is Suicide Ideation a Surrogate Endpoint for Geriatric Suicide?

The present study explored the validity of treating suicide ideation as a surrogate endpoint that can serve as a proxy for suicide in clinical intervention research with suicidal seniors. Two criteria; that suicide ideation is modulated by the proposed intervention and that modulation of suicide ideation leads to a quantitative reduction in suicide rates, were the focus of this review. A series of literature searches of the PsychINFO and Medline databases were conducted on the terms geriatric, elderly, seniors, suicide, self-destruction, clinical, randomized, trial, treatment, intervention , and ideation . Articles were analyzed if they provided sufficient information to examine whether an intervention effectively led to a reduction in suicide ideation among seniors. Two hundred and eight articles were considered for potential inclusion in this study, with 19 articles meeting final inclusion criteria. The articles reviewed were divided into three broad categories: articles supporting suicide ideation as a surrogate endpoint for geriatric suicide ( n = 6); those not supporting this hypothesis ( n = 1); and those providing insufficient information to test the hypothesis ( n = 12). The present analysis provided modest evidence for suicide ideation as a surrogate endpoint for geriatric suicide, due, in part, to a paucity of randomized controlled trials of treatment interventions for suicidal seniors, thus demonstrating a clear need for research in this area. Implications of utilizing surrogate endpoints in suicide research are discussed.     

The development and adoption of controversial default technologies

Default technologies evolve from failure. Within the realm of human behavior, technologies based on the use of aversive contingencies can be conceptualized as default technologies because they come into play when natural contingencies or positive reinforcement fail to produce a desired behavioral outcome. Historical as well as contemporary events suggest that it is a mistake for behavior analysts to advocate for the adoption of aversive technologies. We must, however, continue to play a leading role in the development of such technologies so that they will be used in an appropriate manner. Furthermore, the eventual elimination of aversive technologies will be possible only through continued, careful, and experimental analysis of the contexts of failure in which they are born.