| Natural reproduction makes humans to survive endlessly, and has always been one of the basic meanings of human society life. But because all kinds of reasons, parts of women bearing reproduction suffered from infertility and have no normal production conditions,not only losing the fundamental rights of mother, it is also not conducive to harmonious family and society as a whole. With the development of society, human-assisted reproductive technology came into being, which became the happiness of the families can’t be pregnant naturally, giving them new hope. All kinds of new type of fertility ways mainly include artificial fertilization and embryo transfer, and embryo transfer is divided into a test tube babies and surrogate technology.Surrogacy solved the problem of women who has the difficulty of reproduction. However, the clinical application of technology is not easy, there are not only technical flaws and difficulties itself, also caused anomie of social ethics order, impacting the existing legal regime.Surrogacy, refers to an agent technology using modern medical method and artificial assisted reproductive technology,experts combine the sperm and eggs of artificial extraction in vitro, and form the fertilized egg or embryo into the pregnant woman’s womb,then the woman takes the place of pregnant childbirth.In view of the process that the third person takes the place of the wife to gave birth to children,there are different ideas on the legal definition, English will be formulated for surrogacy, so there are a large number of scholars translate it “surrogacy”simply.Based on the investigation to the domestic and foreign legal system of the surrogacy, different countries and regions have different legislative models and judicial practices.The civil law countries represented by Germany and France,banned the surrogate behavior, basically see surrogacy technology will severely impact the implementation of the current social ethics and legal system.The common law countries represented by Britain and the United States believe in freedom, allowing the surrogate phenomenon or non-business type the surrogate phenomenon exists.Of course, in the same country, different areas have different system designs, such as the USA, states have free right of legislation, mainland China and HongKong SAR, Macao SAR and The Taiwan region also have different system specifications.The legislation attitudes on surrogacy in our country tend to be conservative. Surrogacy is prohibited by law in 2001, the Ministry of Health enacted Measures for Administration of Human Assisted Reproductive Technology. By 2003, Specification of Human Assisted Reproductive Technology and some other regulations about human assisted reproductive technology are enacted in succession launched by People’s Republic of China Ministry of Health. These two legal provisions are consistent in the issue of surrogacy—they prohibit it. Although our country bans the surrogacy in the attitude of legislation, it did not make the surrogate phenomenon reduced or disappear, on the contrary emerging a large number of underground surrogate behaviors. China’s first "surrogate test-tube baby" was born in Beijing in 1996.In December 2011, more media reports that some businessmen in Guangzhou had eight births through the surrogacy. The emergence of the surrogacy has brought the huge impact and challenges to the original way of fertility, legal relationship, the ethic relationship, etc. In the background of reality that underground mother secretly, illegal operation agency web sites, some medical institutions to benefit form illegal operations exists, there are many disputes, such as the recognizaton of a parent-child relationship, both sides refuse to or compete for support of the baby, the surrogate mother aborts the pregnancy without authorization, etc, which seriously affects the citizens’ personal interests and social public interests. To effectively avoid the occurrence of such problems, the National Health and Family Planning Commission, the Ministry of Civil Affairs and other 12 departments has established a special leading group in the whole nation about surrogacy, and formulate concrete work plan, during April to December 2015, to carry out the special action against the surrogacy. The action plan has been clear about the various departments responsibility, and will strictly investigate the medical institutions and workers, the surrogate Internet, television, radio, etc, as the same time regulating the artificial assisted reproductive technology, equipment and monitor drugs. With the high demand for children and complex social contradictions and disputes, lawmakers shouldn’t stop, more can’t avoid blindly and press problems, and should be with positive attitude, and organize relevant experts to investigate and discuss the problems, designing the surrogate legal system in line with the time development, promoting social civilization. In the social context of the rule of law, we should use legal means to create standardized and orderly environment for the surrogate phenomenon,conducting surrogacy bound by law.This article will discuss in detail about the surrogate phenomenon, in addition to the conclusion, it is divided into four parts to describe, mainly including the legal concepts, the legislations and the judicial practice experiences in many countries and regions, the llegality and rationality discussion on surrogacy, the nature and legal effect of surrogacy contract, the rights and obligations of the parties,the recognization of a parent-child relationship and the legislation advice about surrogacy in our country, ect.The Chapter1:Sketch of surrogacy. This part carried out the phenomenon of surrogacy in detail, including the rise and development of surrogacy, the concept, characters and type of research of the surrogacy. This paper advocates a limited surrogate model, and in the current situation, only the complete surrogate gestational surrogacy should be allowed, which basically conform to the requirements of the general social ethics, also can satisfy the desire of a couple to have genetic relationship with their children. Details will be explained below. Through the above content introduced, we hope to provide more complete background information for theoretical studies.The Chapter2: the introduction and analysis of legislation of surrogacy in foreign countries and domestic areas. This section introduces foreign countries and Hong Kong and Taiwan representative legislation on surrogacy phenomenon, examining the specific legislation theory and technology model. Of the Anglo-American law system countries represented by America and Britain were more open and relaxed attitude, the civil law countries represented by Germany, France, Japan, are particularly valued social traditional ethical and moral concept, they have a total ban on attitude for the maintenance of social order, then introducing the research and academic status of China’s current legislation on surrogacy analysis. At present our country adopt a total ban on legislative attitude.The Chapter3: Legality and rationality discussion on surrogacy.This part introduces the two opposing views on surrogacy, and expanded their own reasons, through careful study and comparison, this paper draw perspectives on surrogacy, namely the limited open models. In this paper,the writer argue this topics from the need of reality, support of theory, feasibility of operation, values in fields and other aspects. This mode of surrogacy can not only meet the needs of the social reality, but also has the medical technical support, has the relative law theory and legal rules of argumentation, while relevant legislation experience can draw lessons from abroad. It has the high value and significance in society, medicine and law. The author hopes that by demonstration of many aspects, such as the theory and practice, we can cause the caution of legislative boundary about surrogate phenomenon and they will formulate corresponding legal norms to guide the phenomenon, and guarantee citizens’ basic rights.The Chapter4: the Suggestion of future reproduction legislation in our country. The main problem of this part is to put forward a suggestion of legislative system. In the design of legislation, we should follow the principles of limited using, noncommercial, public power intervention, the parties’ voluntary, designing the definition, characteristics, law effect and liability for breach of the regulation on surrogacy contracts, determining the rights and obligations of both parties, designing a model of combination of parent-child relationship by contract freedom and public power intervention. Finally the author puts forward her think in terms of surrogate regulators. We hope that it is meaningful for the improvement of legal system on surrogacy. In which, surrogacy contract issues and the identity of the baby given birth by a surrogate mother are the core and key legal issues of surrogacy, the first class problems of surrogacy legal system, also the key to solve legal disputes.With the development of society, medical field achievement is outstanding, the eager for children to infertility group in society should be got enough attention. Facing the present situation of the underground surrogate phenomenon, if the law just bans, it won’t help for the problem. At present, there aren’t systematic research about surrogacy technology and also on the legal system, it is only be briefly stipulated in the administrative regulations, the legislative attitude is too conservative and single. Under such background, this article is to describe the development of surrogate technology in our country, and draw lessons from the successful experience of the relevant surrogate system at home and abroad, to provide the reference for our country’s legislation mode. The law should be developed with the needs and realities. Surrogacy technology solved the difficulty of reproduction, causing a new set of social problems, So we should timely established appropriate legal norms to regulate surrogacy. creating a good system of rules. |
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