Research On The Legalization Of Surrogacy

Surrogacy is a common problem in law and ethics.As a remedy for natural fertility,however,it conflicts with a country's legal tradition,ethical tradition and social public order and good morals.So there is a great deal of controversy in the academic circles.The problem of “Surrogacy should be legalized or not” can be divided into two views: the “Legal theory” and the “Illegal theory”.From the relevant literature,only a minority of scholars think that surrogacy should be completely banned.The vast majority of scholars support the “Legal theory”.They advocate the differential regulation of surrogacy—the altruistic surrogacy with no profit purpose should be opened in legislation.But,in fact,altruistic surrogacy is very difficult to draw a line with the commercial surrogacy.“Reasonable compensation” is difficult to identify and extremely easy to develop into “Commercial transactions”.Our social ethics and social system is not enough to support the case of surrogacy.Under the circumstance,hasty opening of surrogacy will only lead to more negative problems,and finally departure from the original intention of legislation.The current law of our country is completely forbidden to surrogacy.The third provision of the “Measures for the Administration of Human Assisted Reproductive Technology” published by the Ministry of Health in 2001 stipulates that “Medical institutions and medical personnel shall not implement any form of surrogacy technology”.But there are many problems in legislation.For example,the legal rank of the rules is very low,the regulatory object is too narrow,the punishment is too light,and there is no other relevant legislative support.Therefore,such regulation cannot play a good role in practice.However,this is the inevitable result of legislative defects,it can't be attributed to the prohibition of surrogacy itself.The things we need to do is to improve the relevant legislation rather than open surrogacy.Based on this,the paper combs the related academic disputes,and the three core issues involved in the dispute are discussed.The conclusion is that surrogacy can not be legalized.And some suggestions are put forward according to the defects of current legislation in our country in the end.The article is divided into four parts:The first part summarizes the academic community controversy about the “surrogacy should be legalized or not”.The “Legal theory” advocate that surrogacy(especially the altruistic surrogacy)should be legalized.The “Illegal theory” advocate that surrogacy should be prohibited by legislation.The second part mainly analyzes the core issues of the dispute.There are three pairs of relationships: human nature,humanity,human relations and human rights;morality/ethic and law;private law autonomy and state control.Specifically: 1.Human nature is the foundation.Humanity is the most basic moral principle based on human nature.Humanity is the premise of human relations.And finally,human rights.2.Ethical analysis is the prelude to legal judgment,the premise of surrogacy quality and legislative countermeasure.3.Private law autonomy and State regulation need to achieve a dynamic balance.The principle of public order and good custom is the product of the state's compulsory infiltration into the private law through the legislation.The third part is based on the argument of the second part.This part expounds the reasons why the surrogacy should not be legalized.Specifically: 1.Surrogacy against humanity.2.Surrogacy violates ethics.3.Prohibition of surrogacy is not an unreasonable control of private law.4.Surrogacy violates the principle of public order and good morals.The fourth part makes an investigation on the extraterritorial legislation,analyzes the defects in our legislation,and puts forward the relevant legislative proposals in the end.