Rescerch On Surrogacy Legal Regulations

The generation of the modern surrogacy, first appeared in California in the 70’s of 20th centuries, later accompanied with more and more media reports and applications of the artificial reproduction technologies, surrogacy has caught widespread attention in the UK and the US. Numerous researches on surrogacy have urged governments to take measures in all aspects such as public policy, law reformation, to clarify the rights and obligations of both parties in the surrogate contracts. The present legislations in these countries give different resolutions on the problem of surrogate children’s legal status and the parenthood. The general public of Britain and the US shows more tolerance to surrogacy comparing to most parts of Europe. Still surrogacy is a controversial process that is not legal in most European countries. In China, there is no policy so far regulating neither artificial reproduction nor surrogacy. Although Ministry of Public Health prevent surrogacy in china by administrative regulations, these regulations only forbid medical facilities and medical personnel to carry out any kind of surrogacy, they can not stop the organizations out of the medical facilities and natural persons implement surrogacy. Till now, the current law has no answer to the effect and enforceability of surrogate contract. Since the technical difficulty of surrogacy has already been resolved, the commercial surrogate industry has silently risen in China. Facing this reality, the legal system that supports social order and basic behavior norm, should accommodate the demand of social development and react appropriately to the new-born science and technology technical usage, rather than negatively ignore or hastily forbid it. Moreover, forbidding surrogacy will not prevent the rise of surrogacy industry, but encourage such industry to be conducted in secret that accompany with more social problems. China’s reality and law environment give questions on whether surrogacy should be legalized or not, what is the theoretical basis of surrogacy legitimacy, which mechanism or approach should lawmaking to take, and how the surrogate contract could be effective. An extensive research with international perspectives concerning these questions is needed. The purpose of this thesis is to discuss these issues involved in, and to provide some suggestions for coming legislation.Besides the Introduction and the Conclusion, this thesis consists of five chapters. The Introduction briefly discusses the background of this thesis, the research motive, range, and method, also the related term definitions.The ChapterⅠ: General situation of surrogacy. Firstly, the surrogate phenomenon, its emergence, its development and its current situation are reviewed relatively with international perspectives. There are two popular models for surrogacy, one is acknowledgement, represented by UK and US, and the other one is forbiddance, represented by civil law system countries. The various factors that stimulate the surrogacy industry prospering are analyzed as well. Secondly, the definition and classification standard of ’Surrogacy’ is demarcated by the author. Furthermore, the present situation of surrogacy in China, including the surrogacy Industry present position, the public attitude to surrogacy, and the prohibition of surrogacy law is concerned.The ChapterⅡ: A research on basic theories of surrogacy legitimacy. In order to explain the connotations of legitimacy, this chapter resort the political theory of Legitimacy and put forward two paths to study surrogacy legitimacy. Firstly, as the positive law itself includes the value of rationality and has been respected and obeyed by the public, researches on sources of surrogacy legitimacy from the constitutional given rights such as self-decision right, reproduction right, and privacy is advisable. The second path is to use Public Order and Good Morals and its criteria of the lowest social ethics limits to re-exam the agreements related to surrogacy, including its exploitation, commercialization, and demolition of traditional family. Moreover, the author suggests that surrogacy reaching the following conditions should be legitimized: (i) the commissioners are infertile couples, (ii) only full surrogacy with the commissionaire couple providing the gametes (narrow sense full surrogacy) is permitted; (iii) the agreement for surrogacy is not commercial, reasonable expenses can be paid to surrogate mother.The ChapterⅢ: Legislations on surrogacy in a comparative perspective. The legislations on surrogacy in the US, UK, Taiwan, Canada, and Israel are compared. Case studies, lawmaking backgrounds, and the contents of legislations of US, UK and Taiwan is reviewed in details. Moreover, these countries’characteristics, especially the different attitudes towards surrogate contract enforceability are distinguished. These countries have advanced theories and experienced judicial practices on surrogacy, which is the foundation of the current research on surrogate contract, and is valuable for China’s future legislation.The ChapterⅣ: Discussion about the models of regulating surrogacy. Basing on the opinion that the standard for verifying surrogate children’s legal status and the approach to regulating surrogacy have latent consistent standpoint, two popular models, i.e. adoptional model and contractual model, is examined. The results demonstrated that adopotional model is impracticable in China. Contractual model that regulating narrow sense full surrogacy is suggestible by means as follow: (i) the parties should require a judicial review for an order validating the gestational contract before implementation; (ii) the commissionary couple shall file notice with the court that a child has been born to the gestational mother within 180 days after assisted reproduction, thereupon, the court shall issue an order to confirm parenthood of the commissionary couple; (iii) the validating contract is enforceable; (iv) if the contract is void or the commissionary couple sue for denial on the legitimate birth, the parent-child relationship is determined by traditional parentage rules.The ChapterⅤ: A research on surrogate contract.This chapter is the most important section of the thesis. Continuing the front assumption of surrogacy legitimized, the author commences a comprehensive study on surrogate contract. The nature of surrogate contract is unique, consisting of both personal and property characteristics. How to resolve the situation of ambivalence caused by surrogacy between the relationship of status and the relationship of contract? What are the necessary and forbidden items of the contract? What liabilities the parties should burden when they terminate the contract? These questions are still on debate. This chapter consists six sections, including nature of surrogate contract, aspects of applicable laws, legal relationships of surrogate contract, establishment, effect, contents, termination, and liabilities of surrogate contract.The ChapterⅥ: A frame of future artificial reproduction legislation. There is a tendency for legislating artificial reproduction in China nowadays This cross-national analysis of legislations and researches on surrogacy revealed that issues about surrogacy is more complex than other artificial reproduction technologies. Further researches on whether China should regulate surrogacy in future artificial reproduction legislations are needed. In the last chapter, the author puts forward the basic rules of artificial reproduction legislation, and special rules of surrogacy legislation. Lastly, the ideas of preparations, classes, and frame of surrogacy legislation, as well as legislative, administrative and judicial supervisions have been provided.In conclusion, the author appeal that to find an institution to complement status law system and contractual law system on the issues about surrogacy, respecting the freedom of establish parent-children relationship by contract on one hand, sustaining the traditional family relationship bases on the other hand. In all these legislative design, it is most essential that to balance both parties’interests, and to regard the children’s interests as the core value of the surrogacy regulation.