雷春红律师:13666659140
PreviousNext

律师说法

时间:2020-09-24

同性结合(同性婚姻)的法律问题(中英文)
作者:雷春红
同性结合在欧洲国家社会生活、法律规范等方面已经是很平常的事情,但我们国家因为传统观念、社会意识等原因,对此话题都比较隐讳,以异样的眼光看待同性恋人群。最近几年,人们更加开放地谈论这个话题。以知名性学家李银河为代表的,一直努力促使同性婚姻合法化的提案能被提交。
It is normal for the same-sex combination to be in the social life and legal norms of European countries. However, because of traditional concepts and social awareness, our country is relatively concealed and treats homosexuals with a different perspective. In recent years, people have talked about this topic more openly. A proposal by the well-known sexologist Yinhe Li, which has been working hard to legalize same-sex combination can be submitted to the legislators.
我认为,对法律是否要规范同性结合的问题有个理性的认识,同性恋古今中外都有,属于少数人群,但其权益是不能忽略的群体,由于同性伴侣关系没有法律保护,他们面临的家暴、财产继承、收养子女等多方面的权利缺失。所以,法律应加以规定,即使民法典不加以规定,也应有单行法律,这才能体现法律的人性关怀,让同性恋者建立和保持长期关系,可以减少性病传播,减少同性恋者进入异性婚姻,避免婚姻悲剧。
In my opinion, we should have a rational understanding of whether the law should regulate the same-sex combination. Homosexuals belong to a minority group, but their rights are not negligible. Because the same-sex partnership has no legal protection, they face many problems: domestic violence, property inheritance, and adoption of children. Therefore, the law should stipulate that even if the Civil Code does not stipulate, there should be a single law, which can reflect the human care of the law, enable homosexuals to establish and maintain long-term relationships, reduce the spread of sexually transmitted diseases, reduce homosexuals into heterosexual marriage, and avoid marriage tragedy.
2020年9月,厦门市胡里区法院对我国首例同性伴侣争夺抚养权纠纷案作出一审判决:孩子归“怀胎妈妈”。基本案情:小提与小美是同性伴侣,二人决定生育孩子。她们购买精子,小提提供卵子,通过辅助人工生殖技术将精子与卵子结合,植入小美的子宫,之后小美怀孕分娩女儿丫丫。但在丫丫尚未满一岁时,二人闹矛盾分手,小美将丫丫带走。小提向法院起诉小美,争夺丫丫的抚养权。法院认为,在我国法律没有明确规定的情况下,不能仅以双方确认或仅因丫丫具有小提的基因信息,就认定其与小提存在法律上的亲子关系。出生医学证明载明小美是母亲(未载明父亲姓名),孩子未满周岁仍需母乳喂养,故判决由小美抚养更有利于丫丫的健康成长。
In September 2020, the Huli District Court of Xiamen City made a first-instance judgment on our country's first case of disputes over custody rights for same-sex couples: the child belongs to the "pregnant mother". Basic case: Xiaoti and Xiaomei are same-sex couples, and they decide to have children. They bought sperm, Xiaoti provided eggs, combine the sperm with the eggs with assisted artificial reproductive technology, and implant them in Xiaomei's uterus. Then Xiaomei became pregnant and gave birth to one daughter, named Yaya. But before Yaya is one year old, they broke up in conflict. Xiaomei took Yaya away. Xiaoti sued Xiaomei to the court for custody of Yaya. The court held that, in the absence of clear provisions in Chinese law, it cannot be determined that Yaya has a legal parent-child relationship with Xiaoti only by the confirmation of both parties or only because it has the genetic information of Xiaoti. The birth medical certificate states that Xiaomei is mother (father's name is not stated), and the child still needs breastfeeding under one year of age, so the decision to be raised by Xiaomei is more conducive to the healthy growth of Yaya.
我国不承认同性婚姻合法的情况下,本案当事人购买精子、通过辅助人工生殖技术孕育的行为是违法的。《民法典》第一千零七条规定:“禁止以任何形式买卖人体细胞、人体组织、人体器官、遗体。违反前款规定的买卖行为无效。”但是,我国同性结合所产生的问题已不能仅用违法、违反公序良俗来评判就杜绝了。同性结合不是主流,但也体现了婚姻的多元化。法律规范同性结合不是鼓励同性恋,而是体现法律面前人人平等。同性恋的产生也不是因为法律原因造成的,有太多的综合性因素,宜疏不宜堵,更不应回避。
When our country does not recognize the legality of same-sex marriage, it is illegal for the parties in this case to purchase sperm and conceive them through assisted artificial reproductive technology. Article 107 of the Civil Code stipulates: "It is prohibited to buy or sell human cells, human tissues, human organs, and remains in any form. Any transaction that violates the provisions of the preceding paragraph is invalid." However, the problems caused by same-sex unions in our country are no longer eliminated only judging by violations of laws and public order and good customs. The same-sex combination is not the mainstream, but it also reflects the diversity of marriage. The combination of law and norms is not to encourage homosexuality, but to embody equality before the law. The generation of homosexuality is not caused by legal reasons. There are too many comprehensive factors, so it should be avoided.