Comment On The Dispute Case Of Custody Of The First Surrogate In China

With the development of artificial assisted reproductive technology,surrogacy has broken the tradition of natural fertility as a new technology.While surrogacy has benefited the families of infertility,it has also gradually exposed the legislative vacancy of paternity test in the relative law.Because there is no specific regulation on the paternity and guardianship system of surrogate children in China,the identity of a surrogate and the custody of a child requires judicial discretion.In the case of this article,two children is Chen and her husband Yi Luo through illegal way of surrogacy and both the egg donor and the womb provider are from different third parties.After their son illness,Jia Luo and Xie as the grandparents of two children,they sued the people's court in minhang district of Shanghai because they know that children are not related to their mothers.There is a three-way conflict of interest in this case,and one is that grandparents are based on family ties that are in the interest of the child;The second is the interest of Chen as a parent to raise the children in the relationship with the children;Third,the rights and interests of the children themselves.Because there are legislative gaps in the legal status and custody of surrogate children in China,Only the original state of the ministry of health issued the measures for the administration of human assisted reproductive technology and the Supreme Court promulgated in 1991 "about the relationship duration by artificial insemination children of legal status of'(hereinafter referred to as "the Supreme Court in 1991 letter").In addition,the former only stipulates that medical institutions are not allowed to engage in surrogacy.The latter is applicable to the situation of artificial insemination,as well as the existing paternity rules,which cannot be fully applied to the surrogate children.The custody dispute of the surrogate child in this case is faced with the situation of "no written law of law",This paper intends to analyze the basic problems such as parent-child relationship and guardianship of surrogate children.Taking this case as the starting point,the following three questions are discussed in detail:First,the identification rules of blood relations;Second,how to confirm the legal status of entrusted mother;Third,how to apply the principle of children's best interests in order to maximize the interests of children.