The Analysis Of The First Case Of Custody Dispute Caused By Illegal Surrogacy In China

With the rapid development of science and technology,the society has made great progress,and the ideas of the people are also updated constantly.Human assisted reproductive technology has brought hope for infertile people,and surrogacy as one of the technology,has resulted in a firestorm controversy in the medical profession,ethical circles and even the law circles.With the increase of surrogacy,a series of problems brought about by surrogacy is becoming more and more prominent.For example,The dispute of the legalization of surrogacy,the validity of surrogacy contract,the protection of the rights and interests of surrogate children.There is not any definite provision concerning surrogacy and related issues in the law of our country,and it only takes a stand of the prohibition of surrogacy in two administrative regulations.The surrogacy happens frequently and there are more and more disputes about it in judicial practice,the protection of the rights of surrogate children is particularly prominent.In our country,the legislation regulation of surrogacy and the cognizance rules of paternity relationship in surrogacy are very lacking,and there are different judgments in the relevant judicial practice,which makes the rights of surrogate children not guaranteed.With the birth of more and more surrogacy children,the cognizance of legal status,attribution of guardianship and maintenance,inheritance and other problems of the children should be solved.The first case of custody dispute caused by illegal surrogacy in China in 2016 has raised the level of concern of the society,the case has been heard and the results are entirely different in the two trial courts.The first instance judgment shows that the grandparents who are related to the children by blood get the custody of the surrogate children,and the second instance judgment shows that parenting mother who is not related to the children by blood gets the custody of the surrogate children.There are three main points of controversy in the case:First,the effect of surrogacy on the case;Second,the legal status of surrogate children;Third,the custody of surrogate children.By analyzing the whole case,the following conclusions can be drawn:firstly,the illegality of surrogacy does not affect the specific legal relation of this case.The rights of surrogate children are equally protected;Secondly,the paternity of surrogate children should be guided by the principle of "the mother of childbirth",and the question of attribution of guardianship should be judged under the principle of "the best interests of the child".Finally,in the current legal system of our country,we propose a reasonable path to determine who can be the guardian of surrogate children.