On The Principles Of Rational Using And Legal Regulating For Surrogacy

On February 20th 2001, the Ministry of Health enacted Measures for Administration of Human Assisted Reproductive Technology, which went into effect on August 1st 2001. The Article 3 of this statute provides:"Medical institutions and medical personnel shall not impose any form of surrogacy technology."After that, Specification of Human Assisted Reproductive Technology and some other regulations about human assisted reproductive technology are enacted in succession. All these provisions clearly forbid surrogacy.The official explanation on this total prohibition of surrogacy proposes two reasons: one is that prohibition of surrogacy involves only a very tiny minority, i.e. it won't affect most people; the other one is that surrogacy will bring about numerous problems which are difficult to handle. 1 This explanation seems to be unacceptable. First, whether an interest shall be protected ought to be judged by its essential fairness, not the size of interest group. Second, although surrogacy is fiercely challenging the traditional birthing culture and making a great impact on human ethic, its emergence and growth are important milestones in both scientific and medical history. The social demand for surrogacy is becoming more prominent day by day.The fact in the face of us is that surrogacy does not fade away under the prohibition by law; instead, it is booming developing in half-hidden crevices. Due to the absence of legal regulation, violations of rights and interests of women and children have been arisen every now and then. Therefore, it is more harmful to totally prohibit surrogacy, just because of its side-effect. Only a realistic legal regulation can cut down unnecessary disputes and conflicts, and maximize the benefit of surrogacy to the entire human race.In this thesis, from different aspects such as historical observation and analytical comparison to legislation of major countries, surrogacy is proved to be reasonably existed based on a firm theoretical and practical basis, all kinds of controversy or legal problems will be gradually eliminated, accompanied with the opening of ethic notions and perfecting of legal system. The discussion is set up in the following five chapters:Chapter I, an overview on surrogacy, introducing the background, definition and types of surrogacy, thereby shows that surrogacy is a brand new achievement of modern medical science, and it has to be regulated by law;Chapter II, legislation attitude and status of surrogacy in major countries, as a reference to our country's legislation;Chapter III, ethic foundation and legal basis, i.e. a complete analysis and explanation on ethic, moral, reproductive right, body right and such kind of legal issues and principles, laying down the cornerstone of the legalization of surrogacy;Chapter IV, the rationale and value of the existence of surrogacy, explaining the necessity and feasibility of rational using of surrogacy;Chapter V, a discussion on principles of legal regulation of surrogacy, emphasizing the necessity of distinguishing between different types and situations of surrogacy, and making a progressive promotion of the legalization;At the end, the Conclusion mainly sums up the whole article and restates that surrogacy is well deserved to become legal and regulated by rational provisions under the framework of legal theory of our country.