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Research On Private International Law Issues Of Cross-border Surrogacy

Posted on:2017-07-16Degree:MasterType:Thesis
Country:ChinaCandidate:F GuFull Text:PDF
GTID:2336330491963953Subject:legal
Abstract/Summary:PDF Full Text Request
In the form of unofficial and half-underground, cross-border surrogacy has become popular in the global scope, raising the attention of the governments, the Hague Conference of the Private International Law, human rights organization and etc. As being treated variously in different legislation, coupled with the lack of unified standard controls, the legality,validity and compulsory execution of the cross-border surrogacy agreements are uncertain, which directly lead to the uncertainty of protection of the rights of the parties involved especially the issues of the legal parentage and legal status of the surrogate children. Both the case and the data show that. China has been in cross-border surrogacy trend. At present, no specific laws about surrogacy or cross-border surrogacy in Chinese mainland and the complexity of the problem itself make it difficult to settle the cases in judicial practice.There is urgent need to settle related disputes. This article is chiefly expounded on the basis of general methods of solving the issues of private international law which are international uniform substantive law path and conflict rules path. Besides, the author discussed the special application of the reservation of public order of focus issues in cross-border surrogacy. First, by briefly introducing the Parentage/Surrogacy project of Hague Conference of the Private International Law and the report of European Parliament expert group, combining with the analysis of cases which were judged under the rules of the Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption and European Convention on Human Rights, the author concluded that it is better to apply conflict rules. Second,from the content of surrogacy agreement, it is a kind of contract covers both personal relationship and property relationship. To deal with related disputes more effectively and expediently, the author used the segmentation theory to discuss the contract issue and parentage issue respectively. Focusing on the unequal status of intending parents and surrogates, separation style of many countries towards validity and compulsory execution of the cross-border surrogacy agreements and the new trend of the international private law on the substantive justice, the author analyzed the feasibility and the specific application of the principle of protection of the legitimate interests of the weak party, the segmentation theory and the principle of party autonomy. In order to protect surrogate children from limping parentage, it is important to take action to ensure the best interest of children which has been reflected from some international treaties, case law and domestic private international laws, which can be realized by increasing connecting points or adopting associative connecting points to ensure the law applied is best for surrogate children. Last, basing on the tendency of the limitation of reservation of public order, pursuing to substantive fairness and the uncertainty of public order itself and aiming to balance the interest of national and individual, the author discussed the application of international public order and the relationship between reservation of public order and domestic public law to deal with the issue of the exploitation and commercialization of surrogate mother. In addition, to protect surrogate children and homosexual intending parents from abuse of reservation of public order, it is better to use objective theory which focus on the results of the application of foreign law and put the best interest of children in the first place.
Keywords/Search Tags:cross-border surrogacy, international uniform substantive law, conflict rules, reservation of public order
PDF Full Text Request
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