An Examination Of Legal Parenthood Issues Arising From Transnational Surrogacy

Nowadays,people with medical infertility can realize their dreams of having a child through assisted reproductive technology(ART).Surrogacy,one kind of ART,refers to the practice of a surrogate agreeing to carry a fetus for the duration of pregnancy on behalf of the intended parent(s),who become the newborn child's legal parent(s)after birth.From the perspective of medical science,the surrogacy process makes use IVF technology(in-vitro fertilization),which refers to the process by which an embryo is implanted into the surrogate's uterus.Although the surrogate gives birth to the baby,there is actually no biological relationship between them.Surrogacy has triggered intense debates and posed great challenges to states' traditional legal systems.Divergence exists among states' domestic regulations relating to surrogacy.Some states legalize surrogacy,some states fully ban surrogacy,and overall the majority of states still have no specific regulations relating to surrogacy.Because of differing,often conflicting,domestic legal frameworks,legal parenthood established in the state of origin(usually the surrogate's state)may not be recognized by the receiving state(usually the intended parent(s)' state).The lack of legal certainty,continuity and predictability in the determination of parenthood will negatively affect children's rights to a nationality and a filiation,which contravenes many international human rights conventions such as The United Nations Convention on the Rights of the Child.Given the increasing number of cross-border surrogacy arrangements,many international organizations such as The Hague Conference on Private International Law(HCCH)have paid great attention to this area.In addition,a great deal of scholarly research has noted the necessity of constructing an instrument at the international level to solve transnational surrogacy problems.This dissertation focuses on the legal protection of children born through surrogacy with emphasis on the determination of legal parenthood in transnational surrogacy.On the basis of a comparative study on states'regulatory polices relating to surrogacy,it can be concluded that there is an urgent need to regulate the determination of legal parenthood in transnational surrogacy at the international level.To put it in another way,surrogacy is a global issue that needs to be solved at the international level.Although many solutions have been proposed,there have still not been any international regulations that address surrogacy.In accordance with the principle of the best interests of the child,an international instrument to address this urgent need is proposed.This instrument consists of two parts.First,it is necessary to construct an international convention concerning the recognition of legal parenthood in cross-border surrogacy with emphasis on states' cooperative actions.The Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption can serve as a template.Second,in the long run,a model law in relation to the facilitation of surrogacy should be created,including the eligibility of both the surrogate and the intended parent(s),new definitions of filiation,uniform rules on the determination of legal parenthood in surrogacy as well as a re-interpretation of fundamental norms relating to human rights.