Should premarital medical examination be compulsory?Expert: Relevant system needs to be improved
Wudan/Drawing Original Title:Pre-marital medical examination “voluntary” or “forced” dispute is expected to build system accords with the spirit of the civil code; instead the reporter | pan qiao coordinating editor | jing text, a total of 4196 words, reading is expected to be 13 minutes ▼ pre-marital medical examination, also called the premarital health examination, is planning to be married men and women both parties may affect marriage and birth of diseases for medical examination.Article 12 of the Law of the People’s Republic of China on Maternal and Child Health Care provides a certificate of pre-marital medical examination as a necessary condition for marriage registration, but the Regulations on Marriage Registration do not make pre-marital medical examination mandatory.Since the Marriage Registration Regulations came into force in 2003, there has been a constant controversy over whether pre-marital medical examination should be “voluntary” or “compulsory” due to conflicting legal norms in different levels and fields.In view of the above controversial issues existing in the system of compulsory pre-marital medical examination (hereinafter referred to as the system of compulsory pre-marital medical examination), Cheng Xueyang, director of the Institute of Constitutional Law of China Law Society and deputy dean of Wang Jian Law School of Soochow University, guided 7 students of the school to form a research group to focus on how to deal with the above legal conflicts.In May 2021, it will submit to the Commission for Legislative Affairs of the Standing Committee of the National People’s Congress (hereinafter referred to as the Commission for Legislative Affairs of the Standing Committee of the National People’s Congress) a Proposal on the Archival Examination of Article 5 of the Regulations on Marriage Registration.The legislative Affairs Commission of the NPC Standing Committee attached great importance to the proposal.On December 21, 2021, Shen Chunyao, director of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (NPC), responded in a report on the Review of the Filing of records in 2021 to the NPC Standing Committee, saying that it would “promote the timely revision and improvement of relevant laws and regulations in accordance with the spirit of the Civil Code”.The 19-year legal dispute over whether premarital medical examination system should be “mandatory” has experienced changes from “unity” to “divergence”.Article 9 of the Regulations on the Administration of Marriage Registration issued by the Ministry of Civil Affairs in February 1994 requires the parties applying for marriage to undergo pre-marital medical examination and submit a pre-marital medical examination certificate.Article 12 of the Law of the People’s Republic of China on Maternal and Child Health, promulgated in the same year and implemented in June 1995, also makes pre-marital medical examination a necessary condition for marriage registration.However, the system of compulsory pre-marital check-up has changed since article 5 of the Marriage Registration Ordinance, promulgated in 2003, no longer requires parties applying for marriage registration to submit a certificate of pre-marital medical examination.The Ministry of Civil Affairs once explained in the press conference why the Marriage Registration Regulations did not make compulsory provision for pre-marital medical examination.According to the civil affairs department, the “diseases that should not be married medically” stipulated in the original marriage Law has not been clearly defined, and the marriage registration authority cannot determine whether the parties are suffering from diseases that should not be married and whether they can be registered according to the examination results.Premarital medical examination because do not have pertinence, examination item is much, charge high problem also makes masses reflect strongly.”At present, holding a certificate of pre-marital medical examination cannot be a necessary condition for marriage registration, as that would be a mere formality and increase the burden on the masses.”It is worth noting that when the Law on Maternal and Child Health was amended in 2017, the mandatory pre-marital check-up system was still maintained.This has led to a 19-year conflict between the Marriage Registration Regulations and the Maternal and Child Health Care Law on the issue of compulsory pre-marital check-up since 2003.The same divide exists at the local legislative level.While reviewing the regulations on maternal and child health care or the implementation measures of maternal and child health care laws, the reporter found that heilongjiang, Henan, Shanghai, Hebei, Liaoning and Guangdong provinces still maintain provisions on compulsory pre-marital check-ups.Especially in heilongjiang province, passed in October 2000 and in the same year effective as of December 1, the regulations on the heilongjiang province maternal and infant health care experience multiple revision, not only retained the compulsory check-ups, article 50 of the act also stipulates that the marriage registration office staff did not check the pre-marital medical examination and for marriage registration, will be subject to administrative sanctions.However, in some areas, such as Yunnan Province, the provision of compulsory pre-marital check-up was deleted when the Regulations on Maternal and Child Health of Yunnan Province were amended in 2018.In other regions, such as Guizhou Province, when the Regulations on Maternal and Child Health Care of Guizhou Province was revised for the second time in 2021, the provision of “implementing the pre-marital medical examination system” was changed to “implementing the pre-marital voluntary medical examination system”.In recent years, experts from theoretical and practical circles have suggested or supported the resumption of compulsory premarital check-up. Many DEPUTIES to the National People’s Congress have also called for the restoration and optimization of compulsory premarital check-up on the grounds of promoting “healthy birth and healthy birth”.The research team of Wang Jian Law School of Soochow University found that the reasons for recommending or supporting compulsory pre-marital check-up are that the system is very important to ensure the “healthy birth and healthy rearing” of the population. The research team believes that it is necessary to resume the establishment of compulsory pre-marital check-up.However, the function of the system should be adjusted from promoting “healthy birth and post-natal care” to “protecting the right to know, health and life of the parties intending to enter into marriage”.Cheng xueyang introduced that childbirth is a companion phenomenon of marriage, but does not mean that all heterosexual marriages have fertility phenomenon.If the compulsory pre-marital check-up system is based on “avoiding the birth of defective children and realizing healthy birth and healthy education”, the legitimacy and necessity of the system is questionable for those who cannot or do not want to have children.A 2005 survey by a joint investigation team of The State Council also found that “pre-marital check-ups have a limited effect on preventing birth defects.”In addition, for which premarital diseases will inevitably lead to “birth defects” and cannot be cured or overcome, “neither modern medicine can fully reveal, nor marriage registration departments can grasp.”Cheng Xueyang believes that the freedom of marriage is the basic principle of China’s marriage system, but the freedom of marriage should be established on the basis of “true expression of will”, rather than “blind freedom”.In the traditional acquaintance society, the parties preparing for marriage can carry out effective background investigation through relatives and friends, acquaintances, matchmaking and other channels. However, in the modern society with rapid population flow, with the continuous expansion of people’s marriage radius, a large number of cross-county, city, province and even transnational marriages appear.In order to avoid a lot of information search costs, time costs, communication costs, and marriage and divorce costs caused by information asymmetry when the parties know each other’s physical and mental health, the law should require the parties to get married to hold a pre-marital examination certificate.In Cheng’s view, article 1053 of the Civil Code, which stipulates that concealing a serious illness before marriage can cancel a marriage, is beneficial to the protection of a prospective spouse’s right to know about the other’s physical and mental health, and also a deterrent to the party who tries to conceal the illness.”But this rule can only work if the person concerned can prove that he or she did not tell the truth before marriage or had a serious illness.Even if the marriage is legally annulled, the physical and mental damage of one party to the other due to a serious illness will not be eliminated by the dissolution of the marriage.”Cheng Xueyang said.According to the case data sorted out by the research group, before the Civil Code came into effect, cases of losing due to failure of proof had already happened.In 2019, the Shunyi District People’s Court of Beijing tried a marriage invalid dispute case, because it could not find out whether the serious disease was premarital or postmarital, the case went through the first trial, the second trial, and the retrial, but the parties’ petitions for annulment were all rejected.”After the reconstruction of the compulsory pre-marital check-up system, both parties and judicial organs can obtain relevant evidence at a low cost to determine whether serious diseases occurred before marriage, and whether the affected party hid any serious diseases before marriage,” he said.Cheng Xueyang said.Establishment conforms to our country perfect.this order and social development needs of compulsory check-ups system aiming at how to deal with the conflict of laws problem at present, and how to establish conforms to our country perfect.this order and the social development needs of the system of compulsory check-ups, team that is need to adjust and optimize the system easy to violate the privacy and freedom of marriage in the specific provisions,Rather than abolish the system itself.Cheng xueyang believes that the function of pre-marital medical examination certificate is to prove whether the parties to the marriage have undergone pre-marital medical examination, rather than requiring the marriage registration department to decide whether the parties to be married are suitable for marriage according to the diseases specified in the pre-marital medical examination certificate.Diseases identified by pre-marital medical examination should not be used as the basis for prohibiting a citizen from getting married unless it involves the public interest of society or one of the parties has no capacity for civil conduct and cannot make a true and accurate expression of intention.In view of this, the research group recommends that article 12 of the Law on Maternal and Child Health care be deleted and the provision on compulsory pre-marital check-up be restated in Article 5 of the Marriage Registration Ordinance. At the same time, article 6, paragraph 5 of the Marriage Registration Ordinance be amended to read: “If a person suffers from a disease that is medically deemed unsuitable for marriage,”No registration by the marriage registration authority” is amended to “no registration by the marriage registration authority if the certificate of pre-marital medical examination or certificate of medical appraisal is not submitted”.In order to make the suggestion more practical, the research group redesigned the premarital medical examination certificate for reference by relevant national authorities or departments.Research design go to prove into league two and registration authority, the parties parties united contains client specific results of medical examination, registration authority in the league in addition to the plans to marry the basic information of the parties, by only one agency “checked and told the medical risk” proof, don’t need to indicate the specific medical examination results.The research team believes that in recent years, more and more local governments have realized the importance of pre-marital check-ups and explored the system of free pre-marital check-ups.The research group suggests that after the establishment of compulsory pre-marital check-up, a nationwide system of free compulsory pre-marital check-up should be established by means of financial transfer payment and special funds, and the content of pre-marital check-up should be divided into mandatory items and optional items. The mandatory items should be paid by the state, and the optional items should be included in the reimbursement scope of medical insurance.In addition, the research group believes that the time cost of pre-marital medical examination is also one of the reasons for citizens to delay in pre-marital check-up.According to the explorations and attempts in Heilongjiang, Henan and other places to carry out pre-marital check-up by increasing the pre-marital leave, the research group suggests that the marriage Registration Regulations be amended to add one day of pre-marital check-up leave to ensure that the parties have sufficient time to arrange pre-marital check-up.Reporter: In recent years, you are mainly engaged in the field of land and natural resources law research, and the pre-marital examination system is not your main research field. What is the reason that prompted you to agree with the students to choose this as the topic of master thesis and set up a research group to conduct in-depth research on this issue?Cheng Xueyang: At the commencement of my master’s thesis in 2019, My master’s student Wu Zhi proposed to study the pre-marital examination system from the perspective of constitutional law.Based on her report on the necessity and feasibility of the study, I found that the debate about compulsory pre-marital check-up is very controversial and has remained unresolved for more than a decade.Marriage problems are related to thousands of families, and there are many cases of divorce caused by personal diseases in real life.As a realistic problem that has been debated for more than ten years, we should find out the causes of the problem and what kind of system should be established to avoid and prevent these problems.Reporter: Since the research on pre-marital check-up system was carried out in the first half of 2019, what difficulties have the research group encountered?Cheng Xueyang: The main difficulty is that the outside world does not understand this topic and the relevant conclusions do not support.In particular, between 2019 and 2020, her research work encountered setbacks, when wu zhi’s paper on pre-marital check-up system was rejected in blind review, delaying her graduation for half a year.Although we were under great pressure at that time, Wu Zhi and I believed that the normative conflicts between the Marriage Registration Regulations, maternal and Infant Health Care Law, Heilongjiang Provincial Maternal and Infant Health Care Regulations and other laws existed objectively, and we needed to study how to solve them from the legal and legal perspectives.I encouraged Wu Zhi to carry out more detailed research from the perspective of argumentation, and finally her thesis passed the second review and graduated successfully.Reporter: How did the Legislative Affairs Commission of the NPC Standing Committee respond to the proposal of filing review submitted by the research group in December 2021?Cheng Xueyang: VERY happy, very surprised.At that time, after Wu Zhi’s thesis was finished, I once said that we should not only write a master’s thesis, but also push the work forward in a certain way to make people pay attention to this matter, and prove that this master’s thesis is valuable and meaningful in a certain way.The response of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress is the recognition of the topic selection of the pre-marital examination system, which is a great affirmation for Wu Zhi and myself.This also shows that we should solve real problems in academic research and have confidence in our own research problems. Although people may have different views on the same issue, we should do it as long as we are determined to do it. We should not go with the crowd or follow others’ opinions just because others have different views.Reporter: What do you think is the effect and significance of the attention to compulsory pre-marital check-up?Cheng Xueyang: Judging from the feedback the research group has received so far, there are still many disagreements about how to modify and improve the compulsory pre-marital check-up system, and the proposal put forward by the research group may not win the support and recognition of all sectors of society.However, there is no doubt that the pre-marital medical examination system has gained due attention in legal practice and legal theory, which brings hope to solve the 19-year legal dispute and normative conflict in the field of pre-marital medical examination.Reporter: What is the next plan of the research group for the pre-marital examination system?Cheng Xueyang: In the next step, the research group will theoretically further study the relationship between law and individual rights, strengthen a wider range of research, understand the public’s views on the compulsory pre-marital check-up system, and study how to establish and improve the pre-marital check-up system in line with the overall requirements of China’s current legal order and social development needs.