行政院性平會委員顧燕翎2014/4/3
昨天收到衛福部103年1月23日晚間代孕專案會議的紀錄，那次會議因為數度改期，我最後無法參加，因此想在此分享一些回應。
我認為代孕涉及幾個基本問題：一．請人代孕是否為基本人權。二．替人代孕是否為工作，可否以及如何收費。三．代理孕母是否母親，因此涉及代孕子女是否要經由收養或准收養程序交給委託夫妻。四．是否允許代孕廣告及仲介，可否商業化。五．代孕子女權利。法規制定前必須先釐清這些問題。
一．請人代孕是基本人權？
在專案會議中交大科法所助理教授江浣翠引用1994年開羅國際人口與發展會議對生育權的定義，認定 ”其中have the …means to do so.應可包含使用現存的生殖科技技術，包含代孕…＂這樣的引申可能過當。(在衛福部委託台大社會系林國明教授召開的公民會議的紀錄中，亦開宗明義表示，找人代孕是基本人權。)仔細閱讀1994會議的行動方案，也就是江教授引文的出處，若多讀幾行(如下)，可以發現生育權涵蓋的是生育者的基本人權，安全、可負擔、有效、合理的生育過程，並不包含找別人代生。
The 1994
International Conference on Population and Development Program of Action
A.
Reproductive rights and reproductive health
Basis for
action
7.2.
Reproductive health is a state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity, in all matters
relating to the reproductive system and to its functions and processes. Reproductive health therefore implies
that people are able to have a satisfying and safe sex life and that they have
the capability to reproduce and the freedom to decide if, when and how often to
do so. Implicit in this last condition are the right of men and women to be
informed and to have access to safe, effective, affordable and acceptable
methods of family planning of their choice, as well as other methods of their
choice for regulation of fertility which are not against the law, and the right
of access to appropriate health-care services that will enable women to go
safely through pregnancy and childbirth and provide couples with the best
chance of having a healthy infant. In line with the above definition of
reproductive health, reproductive health care is defined as the constellation
of methods, techniques and services that contribute to reproductive health and
well-being by preventing and solving reproductive health problems. It also
includes sexual health, the purpose of which is the enhancement of life and
personal relations, and not merely counselling and care related to reproduction
and sexually transmitted diseases.
7.3. Bearing
in mind the above definition, reproductive rights embrace certain human rights
that are already recognized in national laws, international human rights
documents and other consensus documents. These rights rest on the recognition
of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and
timing of their children and to have the information and means to do so, and
the right to attain the highest standard of sexual and reproductive health.
It also includes their right to make decisions concerning reproduction free of
discrimination, coercion and violence, as expressed in human rights documents.
In the exercise of this right, they should take into account the needs of their
living and future children and their responsibilities towards the community.
The promotion of the responsible exercise of these rights for all people should
be the fundamental basis for government- and community-supported policies and
programmes in the area of reproductive health, including family planning….
二．代孕可成為工作，得到工作權的保障？
代孕者需承擔生命的風險和長時間、無休息的身體負擔、生活品質的犧牲，代孕可以算是工作，換取合理工資嗎？
為了避免人口買賣，草案中明確規定代孕必須是無償、利他、愛心的付出，委託者可以用金錢來彌補代孕者懷孕所需的費用及工作損失，但必須由政府設下金額上限。所以代孕不是工作，不可以領取酬勞，但有公定價碼。相形之下，荷蘭的代孕規範及執法都非常嚴格，酬勞卻不設限制。
在國際分工下，代孕價碼已經層級化，無償代孕的英、荷價碼遠高於商業（有酬）代孕的印度，未來台灣的價位應會落在二者中間。
雖然商業代孕可能涉及人口販賣，違反人權，但在極度貧窮地區，有些婦女可以因此讓子女上學、修理破損的房屋，也是謀生之道，似應予以工作保障，免受剥削。
草案明訂代理孕母必須無償付出，但可以有少量的金錢補償，同時並沒有規定相關的業者（仲介、廣告、醫師及其他）也必須無償工作，矛盾之處不少。
三．誰的親權？
大部分合法化代孕的國家，如英、澳、荷、加、以，都視代孕者為生母(birth parent)及法律上的母親，（以色列則是由社工暫任監護人，澳洲甚至在法律上稱委託者為substitute
parent或 arranged
parent)。委託者需通過收養或准收養手續，孕母有反悔權。反悔權雖甚少使用，但其存在可以確保代孕者確實是在自由意志下放棄對子女的親權。草案一方面要求代孕者基於愛心，無償付出，一方面又推翻民法對生母和血親的認定，讓代孕子女一出生即成為委託夫妻的婚生子女，剥奪代孕者的反悔權，並不公允。
四．廣告及仲介？
廣告及仲介是代孕商業化的關鍵，也是利之所在，應明文禁止，明訂罰則，並參考澳洲定義何為廣告，參考英國確定處罰對象。荷蘭、澳洲對仲介及廣告皆處以刑罰，並且詳細規定何謂廣告[1]。英國禁止廣告，業主、編輯、發行人都有罪[2]，居間代孕服務機構不得收取任何形式報酬，機構內之個人收取報酬亦視同機構收取報酬。
五．代孕子女權利
代孕子女應有權利知道自己的基因歷史和手足關係。
委託夫妻之檢查及評估應增加有無犯罪（特別是性犯罪）、家暴之紀錄，並確保雙方之年齡／健康狀況足以照顧代孕子女至成年。西澳規定因年長而無法懷孕不能做為委託代孕之理由；荷蘭規定委託妻不得大於41歲；以色列委託夫不得大於59歲，妻不得大於48歲。
六．其他
1. 委託夫妻應在台設籍並居住半年以上，方得享用健保。澳洲、以色列規定委託者必須為當地居民。
2.應明確規定精卵捐贈者、委託者、代孕者及其配偶或伴侶都需接受獨立的心理、生理及法律諮商，以確保各方都獲得完整、正確的資訊，再做決定。獨立是指與進行代孕的醫師和機構與提供諮商服務者沒有任何關聯。[4]
澳何謂廣告：A person commits an offence if the
person—
a. Publishes an advertisement, notice or anything else with the intention of inducing someone to enter into a substitute parent agreement; or
b. Publishes an advertisement, notice or anything else that—
i. Is likely to induce someone to enter into a substitute parent agreement; or
ii.seeks or purports to seek someone who is willing to enter into a substitute parent agreement; or
iii. states on implies that someone is willing to enter into a substitute parent agreement.
50 penalty units--+6 months）
澳何謂出版Publish—if
a. included in a newspaper, periodical publication or other publications; or
b. publicly exhibited in, on, over or under a building, vehicle or place (whether or not a public place and whether on land or water), or in the air in view of people on a street or in a public place; or
c. contained in a document given to someone or left on premises where someone lives or works; or
d. broadcast by radio or television; or
e. electronically disseminated in another way (for example, by inclusion on a website)
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears.）
a. Publishes an advertisement, notice or anything else with the intention of inducing someone to enter into a substitute parent agreement; or
b. Publishes an advertisement, notice or anything else that—
i. Is likely to induce someone to enter into a substitute parent agreement; or
ii.seeks or purports to seek someone who is willing to enter into a substitute parent agreement; or
iii. states on implies that someone is willing to enter into a substitute parent agreement.
50 penalty units--+6 months）
澳何謂出版Publish—if
a. included in a newspaper, periodical publication or other publications; or
b. publicly exhibited in, on, over or under a building, vehicle or place (whether or not a public place and whether on land or water), or in the air in view of people on a street or in a public place; or
c. contained in a document given to someone or left on premises where someone lives or works; or
d. broadcast by radio or television; or
e. electronically disseminated in another way (for example, by inclusion on a website)
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears.）
[2] （英：商業行為(act on a commercial basis)
a. Any payment is at any time received by himself or another in respect of it, or
b. He does it with a view to any payment being received by himself or another in respect of making, or negotiating or facilitating the making of, any surrogacy arrangement.
代孕者除外。
仲介機構：a payment received by a person connected with a body is to be treated as received by the body）
a. Any payment is at any time received by himself or another in respect of it, or
b. He does it with a view to any payment being received by himself or another in respect of making, or negotiating or facilitating the making of, any surrogacy arrangement.
代孕者除外。
仲介機構：a payment received by a person connected with a body is to be treated as received by the body）
[3] （英：商業行為(act on a commercial basis)
a. Any payment is at any time received by himself or another in respect of it, or
b. He does it with a view to any payment being received by himself or another in respect of making, or negotiating or facilitating the making of, any surrogacy arrangement.
代孕者除外。
仲介機構：a payment received by a person connected with a body is to be treated as received by the body
a. Any payment is at any time received by himself or another in respect of it, or
b. He does it with a view to any payment being received by himself or another in respect of making, or negotiating or facilitating the making of, any surrogacy arrangement.
代孕者除外。
仲介機構：a payment received by a person connected with a body is to be treated as received by the body
[4] 澳ACT領養代孕子女: both birth and substitute parents have received appropriate
counselling and assessment from an independent counseling service
A counseling
service is not independent if it is connected with
a. The doctor who carried out the procedure that resulted in the birth of the relevant child; or
b. The institution where the procedure was carried out; or
c. Another entity involved in carrying out the procedure.
a. The doctor who carried out the procedure that resulted in the birth of the relevant child; or
b. The institution where the procedure was carried out; or
c. Another entity involved in carrying out the procedure.
澳Western Australia: 生母及其伴侶、arranged parents及其伴侶、捐贈者及其伴侶都需接受諮商及獨立的法律建議(advice)
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