| Summary: | 碩士 === 國立高雄大學 === 法律學系碩士班 === 98 === Department of Health, Executive Yuan approved the first service agency providing public artificial reproduction technique by the end of June in 1996. There were total 76 reproduction technology service agencies approved as of November 2007. According to the statistics of Bureau of Health Promotion, there were 7,281 persons performing artificial reproduction technique in 2006. Among them, 2,727 persons were pregnant and only 2,022 born alive among pregnant women . The successful rate of artificial reproduction technique was 37.45%, while the rate of born alive was even only 27.77%. It is thus evident that artificial reproduction technique has ignited the hope of many families for breeding next generation. Unfortunately, the successful rate is low. In case that there is negligence during artificial reproduction technique process resulting in unexpected offspring such as disease, mistaken sperm or fertilized egg, such mistake would torture the couple processing artificial reproduction technique in mentally and economically. Could they claim damage compensation due to liability for warranty against defects or default on liability to the hospital and doctor? Claim for restoring to original state? What is the theoretical basis? What about the actual cases? They are all deserved for discussion.
The amendment of Medical Care Act in April 2004 had exempted the application of Consumer Protection Act due to confirmation the civil negligence liability of medical malpractice. Though Artificial Reproduction Act is only available for couples in accordance with present artificial reproduction technique regulations, there are single women are willing to deliver children via artificial reproduction technique. Therefore, the artificial reproduction technique is no longer a medical behavior only for sterility but also become a consumer behavior taking advantage of medical technology due to issues brought by social development and reputation to women’s right of reproductive autonomy. Whether the consumer protection law shall be applied is also an issue of concern.
Furthermore, the “Pilot Plan for Medical Service Internationalization” passed by Executive Yuan in July 2007 opened “Five Major Competitive” medical services with international competitive advantages available for people in Mainland China, including artificial reproduction technique. It is thus clear that issues regarding artificial reproduction technique involved with people from China may occur in the future. Therefore, the study of rights and obligations regarding artificial reproduction technique is very important.
Although the artificial reproduction agreement is a medical agreement, it is different from general medical agreement due to its distinct nature. In addition, the legal issues between hospital and patient could not be settled completely because there is no applicable regulation or laws clarified due to unfamiliar with artificial reproduction technique. Therefore, the study aims at the liabilities regarding artificial reproduction agreement to provide related suggestions. It is expected that the study may help clarifying the content, nature and relationship among the Parties of artificial reproduction agreement, meanwhile people in medical industry may understand more about the legal responsibilities in regard of artificial reproduction agreement and exercise due care. I also hope that people accepting artificial reproduction technique know well their rights and cooperate with medical providers to create beautiful lives altogether.
The difficulties of handling medical accidents are usually because people are not familiar with medical behaviors and therefore it is hard to apply them to regulations or theory of laws. Thus, understanding the special nature of medical behaviors is actually the first step for study of medical agreement. The study first introduces the meaning, features and procedures of artificial reproduction in chapter two. For disputes arising from designation, contract, employment or anonymous agreement in regard of the nature of medical agreement, the study discussed and provided opinions aiming at nature of artificial reproduction agreement in chapter three. As to chapter four “the defaults on artificial reproduction agreement and liability of warranty against defect”, the formation, content, defect and exemption, aggregated agreement in term of defect or mitigation for liability of warranty against defect and effect validity of liability of warranty against defect in artificial reproduction agreement would be explained. Chapter five, the application of Consumer Protection Act, would first discuss the problems of applying Consumer Protection Act to traditional medical agreement and opinions in practice. Next, the changes before and after amendment of Medical Care Act in 2004, followed by whether the Consumer Protection Act is applicable for artificial reproduction agreement since it is distinguished from general medical agreements. Finally, the conclusion in chapter six summarized the liabilities of artificial reproduction agreement and provided opinions from the study.
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