Research On The Legal Regulation Of Surrogacy

With the development of China's economy and the infertility rate increased year by year,the medical technology is highly developed today,surrogacy as a new type of artificial reproductive technology appeared in people's field of vision,it gives those infertility couples hope,making them having the opportunity to get their offspring,but also to break through the traditional mode of birth,which has a huge impact on the morality and law.It is worth studying and discussing about whether surrogacy is legal,whether there is a boundary,how to define,and how to solve the dispute and so on.The first case of custody disputes caused by surrogacy in China has attracted the attention of the society,but there are still shortcomings in the related academic research.Starting from this case,this paper makes a deep discussion on the status quo and problems of surrogacy in judicial practice in China,and then puts forward reasonable regulatory suggestions at the legislative level.In the case of custody disputes caused by surrogate case,Luo and Chen couple have the twins through a surrogate way,after the birth,two children lived together with the couple,after Luo died of illness,Luo's parents,Luo and Xie sue to the court for custody of the two children.The court of First Instance sentenced the custody of two children to Luo and Xie.Chen appealed against the first instance and the court of second instance upheld Chen's claim.Judging from the case,there are no current effective laws in China,which leads to the identification of surrogacy cannot depend on laws in China's judicial practice.The focus of the debate is mainly in three aspects: surrogacy agreement,parent-child relationship and the rights and interests of the parties.Based on the principle of public order and good customs in civil law,the first trial affirms the surrogate agreement as an invalid contract.In addition,the identification of parent-child relations,due to the lack of basic laws in China,can only be carried out from the theoretical level.Among the four theories of blood relationship,contract,the best interest of children and the theory of childbirth,only childbirth is the most consistent with the mother principle in the traditional civil law.The most important part is the identification of the rights and interests of the interested parties.In our judicial trial,the husband and wife are the only subjects exercising the right to give birth,and the state does not protect citizens from exercising their reproductive rights to others.In the trial,the legal status of the surrogate mother should be determined according to the principle of childbirth as the mother.At the same time,the principle of the best interests of the minors should be considered,so as to determine the parental rights and guardianship rights of the surrogate children.Through the analysis of this case,it can be found that there are some problems in the affirmation of surrogacy in our judicial trial.First of all,,there is no law can be used on surrogacy in our country.Although the management of human reproductive technology is used as a basis for prohibition of surrogacy,it is only a part of the regulation that has low efficacy,and it only plays a normative role in the medical system and its personnel.The lack of legal support has led to the confusion of the view of the judiciary,which has weakened the credibility of the judiciary.Secondly,when judging a judgement,judges often worry about the fact that the surrogacy will disturb social order and even cause moral crisis.The verdicts too much emphasizes the legality of surrogacy and neglects the protection of the rights and interests of parties.However,in the trial of surrogacy disputes,the protection of the rights and interests of the parties is the key.The implementation of surrogacy belongs to the reasonable control of the physical rights and interests of the surrogate mothers.The state should protect and respect the exercise of body rights.If the nature of the surrogate behavior is not analyzed,it will be denied,which will damage the reproductive rights of the principal and the surrogate mother.Finally,it is denied that the principal's right of parental protection and guardianship for the surrogate child will result in the inability of the client who has been raised or willing to bring up the surrogate child,but also increases the burden of the surrogate mother.Therefore,in the judicial trial,the rights and interests of all parties must be fully considered and measured,and a reasonable judgment should be made under the legal premise.Aimed at the present situation of judicial cognizance the surrogacy in our country and the existing problems,the author suggests that the legislation should be affirm the reality and legitimacy of surrogacy,rather than let the unreasonable phenomena exist,not through legislation to regulate surrogacy,thereby effectively supervision.Secondly,the reality and legitimacy certainly does not represent the implementation of the surrogate without limitation,considering the influence of the traditional social ethics and moral restriction of the basic situation,the implementation of surrogacy should make necessary restrictions,to protect the reproductive rights of infertile couples to be realized.Finally,the legislation should regulate the effectiveness,performance,termination and liability for breach of the surrogacy agreement,and clarify the rights and obligations of the surrogacy partners.The regulation of the surrogate agreement and the rights and obligations of the surrogacy is the core and key of the establishment of the legal system of the surrogacy,which is also the crux of settlement of the surrogacy dispute.