Study Of The Recognition Issues Of Legal Parentage In Transnational Surrogacy

The different attitudes toward surrogacy in the world have led to the emergence of transnational surrogacy. With the development of globalization and medical technology, transnational surrogacy trends to gradually expand. Some issues such as the legal parentage of the children from surrogacy are uncertain are gradually attracting the attentions of the society. There is no uniform definition on transnational surrogacy in the international community, only the Hague Conference on Private International Law has made a simple definition of the international surrogate arrangement in its Report. In order to covering the various situations of transnational surrogate as much as possible, we can refer to the definition of international surrogate arrangement of HCCH, and use habitual residence and increase the place of acting of surrogate behavior as a criterion for judging transnational factors.In fact, the recognition of legal parentage in transnational surrogacy is a recognition of the documents of the birth countries that determine the legal parental identity of the children from transnational surrogacy.The receiving States have different views on the nature of the birth certificates, and there is no law that specifically regulates the recognition of birth certificates. As a result that the recognition of the birth certificates are divided into two kinds in practice. One is to recognize the birth certificates as evidence of birth registration. The other is to recognize the legal effect of birth certificates. On the contrary, the receiving states have a consistent view on the judicial decisions of the birth countries, and there are special domestic laws and international treaties to regulate the recognition of judicial decisions. Thus, in practice,the receiving States have a clear legal merit for the recognition of the judicial decisions, and have specific conditions to be followed.There are significant differences in the attitude toward surrogacy between receiving states and birth countries. In order to maintain their legal order, the receiving states. often refuse to recognize the legal parentage determined by birth countries, with the reason that it is abhorrent to their public order. Resulting in the children from transnational surrogacy become orphans, even stateless persons. From the theory of the application of public order, and the international obligations to protect the interests of children, it can be seen that it is unreasonable for the receiving States to reject recognizing the legal parentage determined by birth countries because of violating public order.In view of the complexity of the transnational surrogacy problems and the practical urgency to solving the recognition issues of legal parentage in transnational surrogacy, to protect the interests of children from transnational surrogacy, to protect the legitimate rights and interests of intended parents and surrogate, the receiving states shall take the best interests of children as a paramount consideration when recognizing the legal parentage determined by birth countries. At the same time, strictly restricting the application of public order. What’s more, the Hague Conference on Private International Law should draw up relevant international legal documents at the right moment, for regulating the recognition of legal parentage in transnational surrogacy in international level.