| At present,China's administrative regulations,comprehensively deny the possibility of surrogacy,which makes surrogacy industry go underground and is not conducive to the protection of surrogate mothers,entrusted couples and surrogate children.Traditional surrogacy means that the surrogate children are related to the surrogate mother by blood and are pregnant through sexual contact.However,by means of artificial reproductive technology and the use of the gamete of the entrusted couple,it is worth considering whether the pregnancy surrogacy in which the surrogate mother is not related to the surrogate child should be completely banned.The legalization of surrogacy has a wide social basis.From the perspective of reality,China's aging problem is increasingly serious,corresponds to which the fertility rate of China constantly decline.The reasons include not only subjective reasons such as the change of people's fertility concept,but also objective reasons such as diseases and age.The development of artificial reproduction technology provides the possibility of relief for the realization of the reproductive right of infertile people.On the premise of technology permission,the desire of infertile people to bear children related to them should be supported and relieved.Surrogacy is of great social value.It can not only alleviate the pressure of social aging,but also make up for the blind spot of social security system in some aspects,and expand and improve the welfare guarantee with family as the basic unit.From the perspective of economic analysis,surrogacy does not bring excessive external costs,and there are few social problems caused by surrogacy in foreign countries where surrogacy is allowed.The modern adoption system has some shortcomings in efficiency and fairness.Modern adoption systems do little to address the imbalance in the number of children that can be adopted.If all surrogacy is banned completely,the problems in the adoption system are likely to develop into crimes such as trafficking and stealing of babies,which obviously threaten the social security and order.Banning surrogacy not only does not reduce the risks brought by surrogacy technology,but also may lead to greater hidden dangers.The cost for people to avoid the law may be greater and the benefits cannot be guaranteed.It is normal for emerging reproductive technology to be questioned and disputed at the beginning of its application.However,this does not mean that such technology is not necessary and valuable to be applied.Rather,it means that legislation should set certain norms for it to prevent risks to the greatestextent.Moreover,the exploitation of surrogate mothers is a myth.The reason why surrogate mothers engage in surrogacy is largely due to economy,but economy is not the only reason.Even if a woman chooses to engage in surrogacy for economic reasons,there is no moral problem.What needs to be excluded is that women are forced to surrogacy out of their own will.Whether surrogate has legitimacy should be under specific historical context,as well as the legalization of surrogacy law philosophy basis,and surrogate conflict with Kant's theory of "human purpose" does not exist.Kant does not rule out interpersonal cooperation with instrumental,but that person can't "just" be as a tool to use.The reason why a person is human means that he can form himself according to his will,consciousness and decision,and form his thoughts and will freely.Based on his understanding of human values and moral norms,he can form his personality and be responsible for his behaviors.As far as surrogacy is concerned,if the act of surrogacy will not cause harm to others,it should be within the scope of self-determination.Based on the protection of human rights and human dignity,public power should not interfere at will.If the intended parents entrust the surrogate to carry out the pregnancy and delivery,and the surrogate accepts the commission to carry the children related to the intended parents,it shall be within the scope of the self-determination of both parties and the law shall respect and protect it.Surrogacy can correct the deficiency of formal justice and embody the value of substantial justice.Normally,a legal order on the basis of the agreed shall be established,but this is not realistic.It is necessary to remedy the interests of minority groups through the principle of minority doctrine.In terms of surrogacy,infertile couples are a minority group.Legislators should not ignore the needs of infertile couples because natural reproduction is the will of the majority.Surrogacy can stand up to the criticism of critical morality,and the discussion on the legalization of surrogacy should resort to the morality of critical morality or dialectical significance,instead of just taking the general moral concepts of the society as the basis and reflecting on the great significance of morality.The legalization of surrogacy should be recognized to be reasonable after critical moral analysis,which is conducive to promoting social progress and civilization.Limited open surrogacy is the embodiment of infertile people's realization of reproductive right,which is the inherent right of people.As a kind of independent decision right,the reproductive right embodies the freedom of spirit and behavior.The realization of reproductive right reflects the respect forindividual dignity,the recognition of individual value and personality,as well as the requirements of morality.Reproductive right is a basic human right for human beings.For consignees who are born or born without uterus or have dangerous childbirth,it is necessary to protect their reproductive rights by establishing laws and regulations on surrogacy.If infertile couples have exhausted all other reproductive attempts except for a surrogate,but still can't solve the problem of infertile.Now the defense payment function of reproductive right to self-determination has not enough to guarantee the realization of their rights,the state should establish relevant system and perfect the assurance of the reproductive right to self-determination.Surrogacy is also the embodiment of the surrogate mother's realization of body autonomy,as well as the prominent value of family right and the transformation from blood family to nuclear family.From the perspective of extraterritorial legislation,the modes of surrogacy mainly include commercial mode,free mode and forbidden mode.In terms of the choice of surrogacy mode in China,commercial surrogacy mode has great risks,including risks of materialized surrogacy mothers and suspicion of selling babies.The money factor in commercial surrogacy is likely to lead to the imbalance of interests.Once a surrogate mother is considered like general laborer,infertile couples as employers can select workers according to a variety of standards,such as record of formal schooling,height and even appearance.Even if a surrogate mother and the children born to a surrogate has no blood relationship,discrimination may also be based on the traditional view.It is hoped that they can find the ones that best fit their own minds,which is difficult to avoid in commercial activities.Even if the surrogate mother believes that she is signing a surrogacy agreement in a completely autonomous state,in fact,her decision is still dominated by the monetary factor.Because the particularity of surrogate reproductive behavior needs to consider the issue of basic rights restrictions,only abandon the money temptation,its decision can be considered to be based on its own free will.Commercial surrogacy contracts often convince parents who are interested in surrogacy that they not only have the right to adopt a child,but also have the right to adopt a child that meets their requirements.Once commercial surrogacy becomes a common practice,babies are considered a common“commodity”.Parents' love for children is no longer unconditional,but depends on whether the child is a “good product”.If we recognize commercial surrogacy,it is very likely that China's current national conditions will create a huge risk of marketethics.If we set the price of something that is very noble and not priced,it may lead to qualitative change.Therefore,commercial surrogacy should be ruled out.On the other hand,non-commercial altruism is feasible,and altruism is conducive to protect the will of the surrogate mother from interference.The main reason for the surrogacy behavior of the surrogate mother is to help others and sympathize with others.In the purer adherence to their initial intentions,helping parents to give birth to their children,they will do their utmost to protect the health benefits of surrogate children,which is actually beneficial to the protection of the interests of the three parties.It is conducive to guarantee a good relationship between the surrogate mother and the entrusted party.The surrogate mother uses the concept of “gift present” and “mission”to emphasize the altruistic side of surrogacy behavior and devalue the commercial contract nature of surrogacy.Surrogate mothers have experienced both emotional and physical pressure during surrogacy,and they hope that their work will be recognized and valued.If the surrogate mother is disconnected from the intended parent after the child is born or his work is not appreciated,they usually feel exploited and abandoned.Pure altruism is not an ideal way.The connotation of altruism and coordinate the relationship between altruism and self-interest should be clarified.The core of altruism should be generosity rather than purely unpaid.Both altruistic surrogacy and commercial surrogacy is the wrong dichotomy.The core assumption of this dichotomy is that the motive for unpaid surrogates is altruism,and the motive for commercial surrogates is money.This assumption is wrong.The payment of money to the surrogate does not preclude the motives of altruism.There are many professions that are valuable in themselves,and they attract those who want to benefit others.In fact,these jobs can only be done well when the practitioners have strong enthusiasm.China should adopt non-commercial altruistic surrogacy,which should be based on professional surrogacy.Surrogacy in this mode,the motive of surrogate mother is mainly to help others,but she can still expect certain compensation,and the credibility of professionals is the center.The entrusted parents can expect the surrogate mother to put the interests of surrogate children at the highest position.The surrogate mother is entitled to reasonable compensation,and the professional model of surrogacy recognizes the basic ethical nature of surrogacy and recognizes the vulnerability of surrogate mothers and intended parents.Reasonable compensation includes the necessary expenses during pregnancy and compensation beyond thenecessary expenses.The compensation requirements are not considered to detract the human dignity and altruism.Concerns about surrogacy are mostly about its abuse and harm to surrogate mothers and surrogate children,rather than comprehensively denying all types of surrogacy,the focus of discussion should be on how to prevent abuse and harm through legal functions.The key question in surrogacy is not whether it involves currency exchange,but whether it can be simplified only related to the money factor.Based on the principle of fairness,reasonable compensation for surrogate mothers should not be denied.However,reasonable compensation is not unlimited compensation.Intention parents express gratitude to the surrogate mother through reasonable compensation.It is a normal feedback to the hard work of the surrogate mother.The dignity and value of the surrogate mother can be respected.In fact,the surrogate mother is also solved.The worries of the huge economic burden that may arise during surrogacy are conducive to more women participating in the act of helping others.The surrogate fee should be part of the rights and obligations of the surrogate contract,and it should include the necessary expenses and the excess of the necessary expenses.“Required expenses” refers to matters directly related to surrogacy,which should include: the cost of artificial reproductive surgery before conception,the health checkup of surrogate mother,etc.;the related expenses during pregnancy,such as the cost of birth inspection,installation,and even unfortunate abortion;After the production,hospitalization,confinement and other expenses.The surrogacy fee should have an upper limit.The cost cannot be high enough to induce the surrogate to participate in surrogacy only for money;but there is no need to set a minimum limit.If both parties agree to lower the cost,they should be allowed.The surrogate can become pure altruist.Non-commercial surrogacy and public order are not absolutely conflicting,and there is a possibility of integration.Public order and good customs are mainly oriented to order,with a sense of compliance with order and morality derived from the principles of ethics and rationality,while private law autonomy is mainly oriented toward freedom and personal determination.The surrogate contract signed between the parties represents individual freedom,and the most important reason for its unrecognized effect is that surrogacy is contrary to public order.As far as the relationship between public order and private law autonomy is concerned,public order and good customs have defensive and bottom linear characteristics.Good customs have gradually declined,and the evaluation of private life and family life hasgradually withdrawn.Private law autonomy should take precedence over public order and good customs.The evaluation criteria of public order and good customs are numerous and not uniform,including idealism and empiricism standards,local standards and national standards,expert standards and ordinary people's standards.Different evaluation standards have their reasonable value.The connotation of public order and good customs has an era,and it will change with the passage of time.Morality is a constantly evolving category.We can neither review today's problems with yesterday's ethical standards,nor take it for granted that today's ethical standards can be applied in the future.With the passage of time,the legal effect of violating the public order and good customs showed a trend of development from absolute invalidity to relative inefficiency.The original intention of public order and good customs is not general interests and general morality.When applying public order and good customs,it is necessary to study the principles and rules.It is not appropriate that the social morality and non-bottom linear morality can be regarded as the applicable standards.The application of public order and good customs should always follow the linear background of its bottom line.Full protection of personal interests,especially the interests of the weak,can not be crushed on the basis of the general interests of the society.The basic position of civil law,that is,private law autonomy and contract freedom,cannot be easily shaken.As an important reason for negating the effectiveness of the surrogacy agreement,the most important argument is that the identity field should exclude the requirement of meaning autonomy.If the identity relationship can allow the parties to freely agree,it violates the stability requirements of the identity relationship.However,with the development of society,the basis for rejecting the autonomy in the identity relationship has been shaken.It is not advisable to deny the validity of the identity relationship agreement in the public order and good customs.There are two historical moments in the transformation of human reproductive consciousness: the first moment is the determination of the father's identity in parent-child relationship.It opens the transformation of male reproductive consciousness by revealing the causal relationship between sexual intercourse and fertility;the second moment is the technology of surrogacy.The invention opens the transformation of female reproductive consciousness by empowering people to choose and control in the process of becoming a parent.The human body is certainly a physiological phenomenon;but how to treat the human body is a social phenomenon.The root of surrogate bias lies in the social structure dominated by malepower and the social expectation of female roles.As far as pregnancy is concerned,surrogacy does not detract the dignity of the person,and the consequences of exploitation and trafficking of the baby.The limited surrogacy is in line with the behavior of public order and good customs.The surrogacy agreement does not necessarily violate the public order and good customs.The recognition of the autonomy of the meaning of identity is not a violation of the public order and good customs.Public order and good customs should pay special attention to the specific situation in the application of the identity relationship.In order to prevent the impact of surrogacy on public order and good customs,there should be a corresponding supporting system.Surrogacy technology is highly risky and uncertain,so it is important to limit it to the socially and legally permissible framework.Assisted reproduction is a way of human reproduction that breaks down natural reproduction.The implementation of surrogacy should be subject to strict conditions.As an abnormal technology,surrogacy technology cannot be applied firstly in preference to other artificial reproductive techniques or medical methods.The use of surrogate techniques can only be used when the wife can not be pregnant and cannot be rehabilitated by other artificially assisted reproductive techniques.Surrogacy should be a supplementary and non-priority supplemental means used by infertile couples.The law should adopt a conservative attitude towards surrogacy.The concept of restriction should be followed by the principle of restriction,focusing on medical purposes and adhering to the principle of final relief.Surrogacy involves not only the interests of both parties involved,but also the administrative parts of many countries,such as medical institutions,civil affairs organs,and health and family planning.It is related to social stability and long-term stability.Therefore,the state public authority must supervise and manage surrogacy.In the whole process of surrogate reproductive technology,the surrogacy agreement shall be reviewed,approved and supervised by a special administrative department.No institution or individual may implement surrogacy techniques without the approval of the competent authority.The problems in surrogacy should be fully considered and strive to meet the following three requirements: First,the solution should reduce its impact on the current civil law system,and must be consistent with other artificial assisted reproductive technologies;second,surrogacy is One of the artificial assisted reproductive methods,the identification of the surrogate children's identity should meet the purpose of artificial assisted reproductive technology;third,try to maintain the balance between theinterests of the entrusted couples,surrogate mother and surrogate child.With regard to the implementation of limited surrogacy,the qualification of the entrusting party does not need marriage.Single person can also realize the desire of breeding offspring through surrogacy and reproduction in the case of satisfying other conditions.Entrusted couples are required to meet medical restrictions,non-criminal requirements,birth restrictions,physical and psychological restrictions.The qualifications for surrogate mothers include the age limit.The purpose of this age limit is to prevent younger generations from being unable to make a clear judgment about the possible effects of surrogate reproduction on their own;at the same time,it also guarantees that the surrogate mother has certain pregnancy and fertility experience to ensure the normal pregnancy,and the surrogate mother should have at least one child.Only if the surrogate mother has had fertility experience,can she predict better whether she can withstand the physical and psychological effects of pregnancy and childbirth,and can best predict her relationship with surrogate children.Surrogate in China should exclude the case that the surrogate mother and the entrusted couples are close relatives.In addition,the economic and credit status of the surrogate mother should be good;the wife's act of surrogacy does not require the consent of her spouse.The existence of the surrogate institution can minimize the risk of the implementation of the surrogacy agreement and promote the communication between the parties to the agreement.The surrogate institution should be non-profit,which can not conduct commercial propaganda,but may charge a reasonable fee.The surrogate intermediary institution shall be strictly controlled by a special administrative agency.The surrogate institution shall guarantee the qualified qualifications of the surrogate party,ensure the transparent circulation of the parties' information,ensure that the parties have independent lawyers and fully inform the parties,and open an intermediate trust account.The contract signed by the surrogate and the surrogate institution has the dual nature of intermediation and contractual contract.If the surrogate institution fails to fulfill its attention to the obligation,the work will be flawed,resulting in irreparable damage to the surrogate outcome.If the institution breaches the contract,the surrogacy agency shall also bear the responsibility for guarantee.If the surrogate institution has intentional or negligent acts on the occurrence of the defamation and the act causing damage to the interests of the entrusted couple or surrogate mother or surrogate child,the surrogate institution shall be liable for breach of contract liability and tort damages.The implementingagency(medical institution)of surrogacy shall fully guarantee the informed consent of the surrogate mother and the client during the surrogacy process,paying particular attention to the particularity of the principle of informed consent in the process of surrogacy and to exclude the obstacles existing therein.The surrogacy agreement is not a sales contract,a labor contract,an employment contract or a lease contract.Surrogacy often involves the birth of life and health of life.It is quite different from ordinary contracts.The surrogacy agreement should be a kind of a typical special contract.The contract of the surrogacy agreement is for the surrogate mother to provide care for the embryo and delivery,not the uterus or surrogate child of the surrogate mother.The core content of the surrogacy agreement is that the surrogate mother replaces the entrusted parent to give birth to the child and is entitled to certain compensation;the intent parent has the right to obtain custody and custody of the surrogate child and assume the obligation to compensate the surrogate mother.The determination of the validity of the surrogacy agreement does not apply only to the rules of the contract law.If surrogacy is suspected of exploitation,the problem is not because of surrogacy itself,but because of the norms that the surrogate mother receives during pregnancy.The scope and extent of the surrogate mother's right to be bound by the contract must be limited to fulfilling the promise of the surrogacy agreement and achieving the objective criteria for the purpose of the surrogacy agreement.The autonomy of private law in the surrogacy agreement is not the highest criterion,and it cannot override personal freedom.If the objective criteria for the purpose of the surrogacy agreement can be clearly defined,the scope and extent of the surrogate mother's rights can be restricted in surrogacy.The rights are not only adequately protected,but also not exploited,and surrogacy does not have an impact on the public order.This makes it possible to legalize surrogacy and benefit infertile couples.Specifically,the basic rights of surrogate mothers are unrestricted;the restrictions on the general personality rights of surrogate mothers can be divided into general behaviors and self-destructive behaviors,the latter can be subject to contract restrictions;autonomy of medical treatment and medical information disclosure rights cannot be limited.The surrogate mother is limited to the reporting of medical behaviors and medical information related to the performance of the contract;the restriction on maternal autonomy should be differentiated according to the time of pregnancy;the decision-making power of the surrogate mother and the right to terminate pregnancy can not be restricted.The behavior of the surrogatemother during the surrogacy has a great impact on the healthy growth of the fetus.Although the surrogate mother is not the legal mother of the surrogate child,with the respect for life,the surrogate mother should still be required to fulfill the same level of care obligations as the average mother is pregnant.Otherwise,it will cause the misfortune of a child's life.The development of artificial reproductive technology has changed the traditional way of natural birth,which has brought a huge impact on the legal parent-child relationship.The traditional "childbirth as mother" principle has been technically challenged to meet the actual needs;the parent-child relationship is determined according to the source of the gene,yet in some cases it deviates from the autonomy of the donor.The principle of the child's best interests is a standard that makes surrogate children unable to form effective identity expectations before birth.Judging from the effectiveness of the surrogacy agreement,the surrogacy agreement itself does not contradict the mandatory laws and regulations,nor does it have a violent impact on the public order.The effectiveness of the surrogacy agreement should not be easily denied.Therefore,the parent-child relationship in the context of surrogacy should be determined in accordance with the surrogacy agreement,and adhere to the "principle of the child's best interests" as a supplementary element.In addition,since the surrogacy agreement involves the field of identity law with strong ethics,it cannot simply apply the provisions of the Contract Law.Therefore,in the case of invalidity of the surrogacy agreement,the principle of “identity determination” should be adhered to,and the parties should be strictly prohibited,as well as limiting the time of the lawsuit and recognizing the factual relationship.The termination of the surrogacy agreement includes arbitrary termination and legal termination.Before the embryo transfer operation or before the surrogate mother is pregnant,the entrusted couples and the surrogate mother have the right to arbitrarily termination.The two parties can withdraw their meaning at any time.The entrusted couple should bear the relevant expenses and give certain compensation to the surrogate mother based on the principle of fairness.After the surrogate mother is pregnant,the right to terminate shall be restricted.The legal termination of the surrogacy agreement mainly includes: the normal fulfillment of the surrogacy agreement;fetal abortion;after a certain number of embryo transfer operations,the surrogate mother is still not pregnant;the surrogate mother died or both spouses died;the surrogate mother lost her ability to continue pregnancy or childbirth.According tothe characteristics of the surrogacy agreement,the breach of contract can be divided into three stages: before artificial insemination,before delivery,and after birth.Before artificial insemination and after artificial fertilization,the pregnant mother should deny the liability for breach of contract;whether the pregnancy should be terminated should be decided by the surrogate mother,but the corresponding liability for breach of contract and tort liability are not excluded;after the child is born,the surrogate mother is unwilling.The transfer of the parental rights of the surrogate child can be enforced;regardless of whether the surrogate child has a defect,the entrusted couples are the legal parents of the surrogate child,and must not refuse to accept the custody and the child;if the third person's wrongful act infringe the interests of the fetus,the entrusted couple can claim the damages for the third person;if the act of the surrogate mother during pregnancy is legal but the fetus has certain defects after birth,there is no causal relationship.The surrogate mother is not liable for damages.If the act of the surrogate mother during pregnancy is self-harming or illegal,it shall be liable for damages. |
PDF Full Text Request