On Law Application Of Transnational Surrogacy Contract

In the era of globalization,people travel across border becomes more convenient and frequent,the conflicts of law application are inevitable in surrogacy contract when it concerns transnational factor.So,the study of private international law must include law application of transnational surrogacy contract.This paper is divided into four parts,with inner logical relation,to study this project from the perspective of comparative law.The first part discusses the definition and law application conflicts of transnational surrogacy contract.The interpretation of surrogacy usually around intentional parent and surrogate mother,and the contract they signed is surrogacy contract.They promise through a contract that surrogate mother will bear a child by using artificial assisted reproductive technology for the intentional parent,and relinquish any and all rights to the child.For a country,the transnational surrogacy contract means at least one of the places where surrogate mother or intentional parent live in,or the place where surrogacy occurs involves other countries.Due to the otherness of legislation,the conflicts of law application of transnational surrogacy contract usually focus on the contractual capacity of the parties and the effect of the contract.The second part mainly discusses the method of the application law of transnational surrogacy contract.On the methodology of law application,there are two pairs of theory.One of them is the argue between holism and segmentation,the former claims a contract should be treated as a whole,the later thinks contracts should be distinguished by the nature and a contract also should be distinguished from different aspects.Another one is the confrontation between subjectivism and objectivism.Because of its particularity and complexity,surrogacy contract is significant different from other contracts.Also,considering surrogacy contract involves contractual capacity of the parties,substantive validity and some other questions,therefore,segmentation theory will be more reasonable and scientific when we decide the method of the application law of surrogacy contract.Meanwhile,it is appropriate to combine the subjective method,which use party autonomy to decide law application,and objective method,which through closet relation to decide law application.The third part talks about the principles of the application law of transnational surrogacy contract.Because transnational surrogacy contract possesses intense personal attributes and the general features of other contracts,so the party autonomy principle and the closest relationship doctrine which is generally adopted in the field of contract,and the principle of personal law which is widely used in the field of personal relation should be considered when we choose the principles of its law application.In practical terms,based on the method of segmentation,personal law should be employed to determine the applicable law when it concerns contractual capacity of the parties and the effect of the confirmation of parental right,and party autonomy principle and the closest relationship doctrine also should be adopted when it includes some items about reasonable awarding.The fourth part put forwards the legislative proposals on the application of transnational surrogacy contract law.Our country applied the method of segmentation in the legislation about application of contract law,which means the legislators divided contract into general contract and special contract and set different applicable law rules for them.But there is no applicable law rules about surrogacy contract,so we need fill the legislative absence.As special contract,we should follow the method of segmentation and divide it into different parts,then set different applicable law rules for them.Meanwhile,considering the surrogacy contract have both attributes of personal and property,we should adopt various principles,such as party autonomy principle,the closest relationship doctrine and so on.Besides,the application range of the rules of surrogacy contract should be limited to the noumenon problems,except contractual capacity of the parties and formal validity.Further more,we should emphasize the importance of excluding the application of foreign law by using reservation of public order and some other private international law systems.