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当前,不仅能否受孕成了越来越多的夫妻面临的难题,每一次受孕所需要的投入也急剧升高。为了充分保护胎儿的健康,刑法完全有介入胎儿伤害的必要。但在刑法上承认胎儿的人格权以及“婴儿伤害说”都将严重限制孕妇的权利。考虑到我国‘当前的家庭结构、生育文化以及社会保障水准等,为了保护胎儿而限制孕妇权利难以获得正当性。将胎儿视为母体的一部分,可以兼顾胎儿保护与孕妇权利保障,能够与我国当前的社会现实和制度框架相吻合。
At present, not only the possibility of conception has become a problem that more and more couples are facing, and the investment required for each pregnancy also rises sharply. In order to fully protect the health of the fetus, criminal law completely involved in fetal injury necessary. However, recognizing the personality rights of the fetus as well as the “baby hurt” in the criminal law will severely limit the rights of pregnant women. Taking into account China’s current ’family structure, the birth culture and the social security standards, it is difficult to gain legitimacy to limit the rights of pregnant women in order to protect the fetus. Taking the fetus as part of the mother’s body can take into account both the protection of the fetus and the rights of pregnant women and can be in line with our current social reality and institutional framework.