离婚后生的试管婴儿，爹还有抚养责任吗？答案

　　结婚4年，没有孩子，

　　因为丈夫无法生育。

　　“再挣扎最后两次，

　　借助试管婴儿技术、

　　精子库技术，守护婚姻。”

　　这是李明、张颖夫妻达成的共识。

　　谁知，婚离了，孩子却“来”了！

　　这一次，

　　李明和张颖为了孩子的归属问题

　　闹到了司法调解室。

　　期待生孩子的张颖终于怀上了，可惜是在离婚后

　　近年来，关于试管婴儿的话题特别火。2018年，中信湘雅生殖与遗传专科医院发布的大数据显示，辅助生殖技术应用38年，该院助孕出生婴儿达到140107个。

　　然而，试管婴儿数量的大幅增加

　　也带来了一个新的法律问题——

　　夫妻离婚时，孩子究竟归谁呢？

　　今天咱们就来探讨这个话题

　　前妻告前夫，索要试管婴儿抚养费

　　4年婚姻走到尽头，也算好聚好散。可没想到，离婚后的第2年，长沙男子李明却因一起特殊的子女抚养费纠纷险些吃了个官司——前妻张颖一纸状书，要求他抚养一个“不属于他”的试管婴儿。

　　这是长沙市天心区法院受理的一起纠纷调解案，负责法律援助的刘悦是湖南君达律师事务所律师。4月22日，刘悦告诉记者，近年来，随着辅助生殖技术和精子库技术研究的发展，“试管宝宝”越来越多，从而在一定程度上让离婚官司发生了一些小变化，比如，试管婴儿的抚养权和抚养费问题。

　　当事人李明与张颖的纠纷案，就是一个很有普法意义的故事。

　　两次“试管”失败，夫妻一拍两散

　　2012年12月，29岁的张颖与34岁的李明经亲戚介绍相恋，步入婚姻。结婚两年，两人几乎不怎么吵架，相处非常愉悦。妻子张颖很喜欢小孩，两人便开始备孕。但努力了大半年，张颖的肚子没有任何动静。在一次谈心过程中，李明说出了一个秘密——他在年少时遭受过辐射伤害，丧失了生育能力。

　　尽管这个消息无异于晴天霹雳，但张颖考虑到两人感情甚好，加之丈夫坦诚相待，便也没想过要离婚。两人一致决定，通过辅助生殖技术，造个“试管宝宝”。

　　2015年3月的一天，张颖和李明来到中南大学湘雅医院签署了知情同意书。由于李明没有可利用的精子，医生建议提取张颖的卵子和医院精子库的精子，培育三管胚胎。

　　夫妻俩签字同意后，医生给张颖植入了第一例胚胎。可不幸的是，因第一例胚胎胎儿发育异常，张颖最终做了人工流产手术。

　　之后，张颖继续进行第二例胚胎移植，结果还是失败了。

　　两次失败，让张颖和李明都没了信心。两人身心俱疲，感情也出了问题，慢慢地，他们不再沟通，甚至因为各种小事大吵大闹。

　　2016年12月，因为经历两次试管婴儿手术而使身体受到影响的张颖回家休养。而这时，李明却以工作忙为由拒绝回家照顾。最终，两人经长沙市天心区法院调解无效后离婚。

　　不愿放弃，她求助前夫再做“试管”

　　尽管已经离婚，可一想到医院里还剩下一管胚胎，喜欢孩子的张颖不想放弃，还是想继续“造”一个宝宝，哪怕是独自抚养也行。

　　当时培育三管胚胎，处于张颖与李明的婚姻关系存续期内，倘若再做第三次，也是需要告知李明的。

　　2017年6月，张颖找到前夫李明，请求他签下“保证书”，承诺无条件配合她完成第三次试管婴儿手术的相关手续。可当张颖在进行第三次胚胎植入手术前，李明反悔了——他认为双方已经离婚，没有合法夫妻关系，即便孩子生出来也跟自己没有任何关系。

　　张颖没有放弃，她通过了解相关法规得知，即使前夫不同意，但由于第三管胚胎是在婚姻存续期内保存的，一旦一方执意要做，也是可行的。

　　就这样，抓住“最后一次机会”，张颖的第三管胚胎移植手术成功了。2018年5月，她生下女儿，取名贝贝。

　　一年多时间过去了，张颖与女儿相依为命，生活压力很大。张颖说，前夫李明从未关心过这个孩子。

　　考虑到孩子以后需要一大笔生活费，经济情况堪忧的张颖想到了李明——“这个孩子是我们结婚期间共同认可培育的‘试管宝宝’，现在他是不是也要承担一笔抚养费呢？”

　　2018年10月10日，张颖一纸状书将李明告上了长沙市天心区法院，希望通过法律途径向前夫索要“试管宝宝”的抚养费。

　　前夫要养育这个“试管宝宝”吗

　　“在调解时，李明和张颖都认可李明并非贝贝生物学意义上的父亲。虽然双方在婚姻关系存续期间均同意使用精子库精子实施人工授精治疗，但张颖却两次植入胚胎失败。而张颖第三次植入胚胎并生下贝贝，是在双方离婚之后。”4月22日，负责张颖子女抚养纠纷案的律师刘悦向记者解释，虽然李明曾给张颖写下无条件保证配合完成试管婴儿相关手续的“保证书”，但实际上并未履行任何相关手续。而张颖再次植入胚胎前，曾征求前夫意见时，李明也明确表示不同意。所以，张颖离婚后单方面进行胚胎植入手术与李明无关，所生女儿贝贝也应该与李明无关。

　　不过，最终经法院调解，双方协商达成一致——李明自愿每月支付500元抚养费，直至贝贝18岁成年。

　　专家说法

　　试管婴儿不是“想生就生”

　　孙鑫（湖南长仁律师事务所律师）

　　1991年7月8日，最高人民法院在《关于夫妻离婚后人工授精所生子女的法律地位如何确定问题的批复》司法解释中提到，“在夫妻关系存续期间，双方一致同意进行人工授精，所生子女应视为夫妻双方的婚生子女，父母子女之间权利义务关系适用《婚姻法》的有关规定”。

　　也就是说，不管是否使用丈夫的精子和妻子的卵子进行人工授精，只要夫妻双方属合法夫妻，且签订合同达成一致意见，夫妻双方便是“试管婴儿”法律意义上的父母。

　　所以，从上面的案例中可见，李明不需要抚养孩子的原因在于孩子是在离婚后培育出生的。倘若张颖与李明没有离婚，或是在没离婚之前生下了贝贝，那么，李明就是孩子法律上的父亲，与张颖的法律地位一致，即便离婚后也同样需要抚养孩子。而孩子成人后，也需要对李明进行赡养义务。

　　夫妻离婚，“试管婴儿”该归谁

　　陈一鸣（湖南鑫源律师事务所）

　　夫妻离婚时，“试管婴儿”的归属问题是近年来大家讨论的热点。其实，这个问题并不复杂，抚养权归哪一方，要根据不同情况来分析。

　　▼

　　01

　　如果精子与卵子都来源于夫妻双方，只是借助了科学辅助技术孕育生子，那么“试管婴儿”与夫妻双方均有血缘关系，并属于婚生子女、亲生子女。一旦夫妻离婚，子女的抚养权处理与正常自然受孕生育的子女相同。

　　02 如果在婚姻关系存续期间，事先经过夫妻双方的一致同意，或事后一方明确表示没有异议，由夫（或妻）一方提供精子（或卵子），第三方提供卵子（或精子）而实施的人工授精，所生子女依然视为夫妻双方的婚生子女，与夫妻以外的供精、供卵者不发生父母子女关系。一旦夫妻离婚，对子女的抚养问题与第一种情况相同。 03 如果在婚姻关系存续期间，一方配偶未经另一方配偶同意，采用他人精子（或卵子）人工授精生育子女，所生子女与未同意一方的配偶无法律上的亲子关系，故不承担抚养义务。其供精、供卵者也不承担抚养义务。不论是否离婚，该子女由执意进行试管婴儿手术的一方独立抚养。 04

　　另一种特殊情况：如今还存在一种“借腹生子”的情况，即夫妻俩的精子、卵子借其他人子宫孕育并分娩子女。由于此情况属于违法行为，因此，即使提供受精卵的夫妻与孩子存在血缘关系，但“借腹生子”的夫妻依然不算孩子法律上的父母，“代孕者”才是孩子生母。一旦产生纠纷，“代孕者”将对孩子存在法律上的权利和义务。

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　　ng, said the Stark words. Not for the first time, she reflected on what a strange people these northerners were.“The man died well, I’ll give him that,” Ned said. He had a swatch of oiled leather in one hand. He ran it lightly up the greatsword as he spoke, polishing the metal to a dark glow. “I was glad for Bran’s sake. You would have been proud of Bran.”“I am always proud of Bran,” Catelyn replied, watching the sword as he stroked it. She could see the rippling deep within the steel, where the metal had been folded back on itself a hundred times in the forging. Catelyn had no love for swords, but she could not deny that Ice had its own beauty. It had been forged in Valyria, before the Doom had come to the old Freehold, when the ironsmiths had worked their metal with spells as well as hammers. Four hundred years old it was, and as sharp as the day it was forged. The name it bore was older still, a legacy from the age of heroes, when the Starks were Kings in the North.“He was the fourth this year,” Ned said grimly. “The poor man was half-mad. Something had put a fear in him so deep that my words could not reach him.” He sighed. “Ben writes that the strength of the Night’s Watch is down below a thousand. It’s not only desertions. They are losing men on rangings as well.”“Is it the wildlings?” she asked.“Who else?” Ned lifted Ice, looked down the cool steel length of it. “And it will only grow worse. The day may come when I will have no choice but to call the banners and ride north to deal with this King-beyond-the-Wall for good and all.”“Beyond the Wall?” The thought made Catelyn shudder.Ned saw the dread on her face. “Mance Rayder is nothing for us to fear.”“There are darker things beyond the Wall.” She glanced behind her at the heart tree, the pale bark and red eyes, watching, listening, thinking its long slow thoughts.His smile was gentle. “You listen to too many of Old Nan’s stories. The Others are as dead as the children of the forest, gone eight thousand years. Maester Luwin will tell you they never lived at all. No living man has ever seen one.”“Until this morning, no living man had ever seen a direwolf either,” Catelyn reminded him.“I ought to know better than to argue with a Tully,” he said with a rueful smile. He slid Ice back into its sheath. “You did not come here to tell me crib tales. I know how little you like this place. What is it, my lady?”Catelyn took her husband’s hand. “There was grievous news today, my lord. I did not wish to trouble you until you had cleansed yourself.” There was no way to soften the blow, so she told him straight. “I am so sorry, my love. Jon Arryn is dead.”His eyes found hers, and she could see how hard it took him, as she had known it would. In his youth, Ned had fostered at the Eyrie, and the childless Lord Arryn had become a second father to him and his fellow ward, Robert Baratheon. When the Mad King Aerys II Targaryen had demanded their heads, the Lord of the Eyrie had raised his moon-and-falcon banners in revolt rather than give up those he had pledged to protect.And one day fifteen years ago, this second father had become a brother as well, as he and Ned stood together in the sept at Riverrun to wed two sisters, the daughters of Lord Hoster Tully.“Jon?.?.?.?” he said. “Is this news certain?”“It was the king’s seal, and the letter is in Robert’s own hand. I saved it for you. He said Lord Arryn was taken quickly. Even Maester Pycelle was helpless, but he brought the milk of the poppy, so Jon did not linger long in pain.”“That is some small mercy, I suppose,” he said. She could see the grief on his face, but even then he thought first of her. “Your sister,” he said. “And Jon’s boy. What word of them?”“The message said only that they were well, and had returned to the Eyrie,” Catelyn said. “I wish they had gone to Riverrun instead. The Eyrie is high and lonely, and it was ever her husband’s place, not hers. Lord Jon’s memory will haunt each stone. I know my sister. She needs the comfort of family and friends around her.”“Your uncle waits in the Vale, does he not? Jon named him Knight of the Gate, I’d heard.”Catelyn nodded. “Brynden will do what he can for her, and for the boy. That is some comfort, but still?.?.?.?”“Go to her,” Ned urged. “Take the children. Fill her halls with noise and shouts and laughter. That boy of hers needs other children about him, and Lysa should not be alone in her grief.”“Would that I could,” Catelyn said. “The letter had other tidings. The king is riding to Winterfell to seek you out.”It took Ned a moment to comprehend her words, but when the understanding came, the darkness left his eyes. “Robert is coming here?” When she nodded, a smile broke across his face.Catelyn wished she could share his joy. But she had heard the talk in the yards; a direwolf dead in the snow, a broken antler in its throat. Dread coiled within her like a snake, but she forced herself to smile at this man she loved, this man who put no faith in signs. “I knew that would please you,” she said. “We should send word to your brother on the Wall.”“Yes, of course,” he agreed. “Ben will want to be here. I shall tell Maester Luwin to send his swiftest bird.” Ned rose and pulled her to her feet. “Damnation, how many years has it been? And he gives us no more notice than this? How many in his party, did the message say?”“I should think a hundred knights, at the least, with all their retainers, and half again as many freeriders. Cersei and the children travel with them.”“Robert will keep an easy pace for their sakes,” he said. “It is just as well. That will give us more time to prepare.”“The queen’s brothers are also in the party,” she told him.Ned grimaced at that. There was small love between him and the queen’s family, Catelyn knew. The Lannisters of Casterly Rock had come late to Robert’s cause, when victory was all but certain, and he had never forgiven them. “Well, if the price for Robert’s company is an infestation of Lannisters, so be it. It sounds as though Robert is bringing half his court.”“Where the king goes, the realm follows,” she said.“It will be good to see the children. The youngest was still sucking at the Lannister woman’s teat the last time I saw him. He must be, what, five by now?”“Prince Tommen is seven,” she told him. “The same age as Bran. Please, Ned, guard your tongue. The Lannister woman is our queen, and her pride is said to grow with every passing year.”Ned squeezed her hand. “There must be a feast, of course, with singers, and Robert will want to hunt. I shall send Jory south with an honor guard to meet them on the kingsroad and escort them back. Gods, how are we going to feed them all? On his way already, you said? Damn the man. Damn his royal hide.”3．DAENERYSHer brother held the gown up for her inspection. “This is beauty. Touch it. Go on. Caress the fabric.”Dany touched it. The cloth was so smooth that it seemed to run through her fingers like water. She could not remember ever wearing anything so soft. It frightened her. She pulled her hand away. “Is it really mine?”“A gift from the Magister Illyrio,” Viserys said, smiling. Her brother was in a high mood tonight. “The color will bring out the violet in your eyes. And you shall have gold as well, and jewels of all sorts. Illyrio has promised. Tonight you must look like a princess.”A princess, Dany thought. She had forgotten what that was like. Perhaps she had never really known. “Why does he give us so much?” she asked. “What does he want from us?” For nigh on half a year, they had lived in the magister’s house, eating his food, pampered by his servants. Dany was thirteen, old enough to know that such gifts seldom come without their price, here in the free city of Pentos.“Illyrio is no fool,” Viserys said. He was a gaunt young man with nervous hands and a feverish look in his pale lilac eyes. “The magister knows that I will not forget my friends when I come into my throne.”Dany said nothing. Magister Illyrio was a dealer in spices, gemstones, dragonbone, and other, less savory things. He had friends in all of the Nine Free Cities, it was said, and even beyond, in Vaes Dothrak and the fabled lands beside the Jade Sea. It was also said that he’d never had a friend he wouldn’t cheerfully sell for the right price. Dany listened to the talk in the streets, and she heard these things, but she knew better than to question her brother when he wove his webs of dream. His anger was a terrible thing when roused. Viserys called it “waking the dragon.”Her brother hung the gown beside the door. “Illyrio will send the slaves to bathe you. Be sure you wash off the stink of the stables. Khal Drogo has a thousand horses, tonight he looks for a different sort nificent blue-grey mountains, and armored knights rode to battle beneath the banners of their lords. The Dothraki called that land Rhaesh Andahli, the land of the Andals. In the Free Cities, they talked of Westeros and the Sunset Kingdoms. Her brother had a simpler name. “Our land,” he called it. The words were like a prayer with him. If he said them enough, the gods were sure to hear. “Ours by blood right, taken from us by treachery, but ours still, ours forever. You do not steal from the dragon, oh, no. The dragon remembers.”And perhaps the dragon did remember, but Dany could not. She had never seen this land her brother said was theirs, this realm beyond the narrow sea. These places he talked of, Casterly Rock and the Eyrie, Highgarden and the Vale of Arryn, Dorne and the Isle of Faces, they were just words to her. Viserys had been a boy of eight when they fled King’s Landing to escape the advancing armies of the Usurper, but Daenerys had been only a quickening in their mother’s womb.Yet sometimes Dany would picture the way it had been, so often had her brother told her the stories. The midnight flight to Dragonstone, moonlight shimmering on the ship’s black sails. Her brother Rhaegar battling the Usurper in the bloody waters of the Trident and dying for the woman he loved. The sack of King’s Landing by the ones Viserys called the Usurper’s dogs, the lords Lannister and Stark. Princess Elia of Dorne pleading for mercy as Rhaegar’s heir was ripped from her breast and murdered before her eyes. The polished skulls of the last dragons staring down sightlessly from the walls of the throne room while the Kingslayer opened Father’s throat with a golden sword.She had been born on Dragonstone nine moons after their flight, while a raging summer storm threatened to rip the island fastness apart. They said that storm was terrible. The Targaryen fleet was smashed while it lay at anchor, and huge stone blocks were ripped from the parapets and sent hurtling into the wild waters of the narrow sea. Her mother had died birthing her, and for that her brother Viserys had never forgiven her.She did not remember Dragonstone either. They had run again, just before the Usurper’s brother set sail with his new-built fleet. By then only Dragonstone itself, the ancient seat of their House, had remained of the Seven Kingdoms that had once been theirs. It would not remain for long. The garrison had been prepared to sell them to the Usurper, but one night Ser Willem Darry and four loyal men had broken into the nursery and stolen them both, along with her wet nurse, and set sail under cover of darkness for the safety of the Braavosian coast.She remembered Ser Willem dimly, a great grey bear of a man, half-blind, roaring and bellowing orders from his sickbed. The servants had lived in terror of him, but he had always been kind to Dany. He called her “Little Princess” and sometimes “My Lady,” and his hands were soft as old leather. He never left his bed, though, and the smell of sickness clung to him day and night, a hot, moist, sickly sweet odor. That was when they lived in Braavos, in the big house with the red door. Dany had her own room there, with a lemon tree outside her window. After Ser Willem had died, the servants had stolen what little money they had left, and soon after they had been put out of the big house. Dany had cried when the red door closed behind them forever.They had wandered since then, from Braavos to Myr, from Myr to Tyrosh, and on to Qohor and Volantis and Lys, never staying long in any one place. Her brother would not allow it. The Usurper’s hired knives were close behind them, he insisted, though Dany had never seen one.At first the magisters and archons and merchant princes were pleased to welcome the last Targaryens to their homes and tables, but as the years passed and the Usurper continued to sit upon the Iron Throne, doors closed and their lives grew meaner. Years past they had been forced to sell their last few treasures, and now even the coin they had gotten from Mother’s crown had gone. In the alleys and wine sinks of Pentos, they called her brother “the beggar king.” Dany did not want to know what they called her.“We will have it all back someday, sweet sister,” he would promise her. Sometimes his hands shook when he talked about it. “The jewels and the silks, Dragonstone and King’s Landing, the Iron Throne and the Seven Kingdoms, all they have taken from us, we will have it back.” Viserys lived for that day. All that Daenerys wanted back was the big house with the red door, the lemon tree outside her window, the childhood she had never known.There came a soft knock on her door. “Come,” Dany said, turning away from the window. Illyrio’s servants entered, bowed, and set about their business. They were slaves, a gift from one of the magister’s many Dothraki friends. There was no slavery in the free city of Pentos. Nonetheless, they were slaves. The old woman, small and grey as a mouse, never said a word, but the girl made up for it. She was Illyrio’s favorite, a fair-haired, blue-eyed wench of sixteen who chattered constantly as she worked.They filled her bath with hot water brought up from the kitchen and scented it with fragrant oils. The girl pulled the rough cotton tunic over Dany’s head and helped her into the tub. The water was scalding hot, but Daenerys did not flinch or cry out. She liked the heat. It made her feel clean. Besides, her brother had often told her that it was never too hot for a Targaryen. “Ours is the house of the dragon,” he would say. “The fire is in our blood.”The old woman washed her long, silver-pale hair and gently combed out the snags, all in silence. The girl scrubbed her back and her feet and told her how lucky she was. “Drogo is so rich that even his slaves wear golden collars. A hundred thousand men ride in his khalasar, and his palace in Vaes Dothrak has two hundred rooms and doors of solid silver.” There was more like that, so much more, what a handsome man the khal was, so tall and fierce, fearless in battle, the best rider ever to mount a horse, a demon archer. Daenerys said nothing. She had always assumed that she would wed Viserys when she came of age. For centuries the Targaryens had married brother to sister, since Aegon the Conqueror had taken his sisters to bride. The line must be kept pure, Viserys had told her a thousand times; theirs was the kingsblood, the golden blood of old Valyria, the blood of the dragon. Dragons did not mate with the beasts of the 前两天，

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