Identification Of Parent-child Relationship In Surrogacy

It is a common thing to have children.There is no doubt that the person who give birth to the child is the mother.With the development of science and technology,especially the rapid development of medical technology,assisted reproductive technology is becoming more and more mature,and vitro fertilization,embryo transfer and other technologies begin to break through the traditional concept of fertility.A person who gave birth to the child may have no blood relationship with the child.A person who has blood tie with a child may not be the one who give birth to a child.Sunrogacy is like this.A childbirth mother may not be related to the child,while a genetic mother who is related to the child may not the woman who gave birth to the child.This article will focus on how to identify the parental relationship in surrogacy,instead of discussing on the legality of surrogacy,for all children including those born by surrogate mothers shall be treated equally.Therefore,it is necessary to properly solve the problem of paternity of surrogate children.On this issue,the mainstream view mainly includes "Childbirth theory","gene theory","contract theory","Best interests for children theory"."Childbirth theory" advocates " whoever gives birth to a child is the mother of the child,regardless whether she has blood tie with the child or not.In another word,the parental right of the child belongs to the "mother of childbirth"."Gene theory" is just the opposite.A person who has blood tie with the child acquires the parental rights of the child.As the name implies,the "contract theory" advocates that the paternity relationship of surrogate children should be identified based on the surrogate contract signed between the surrogate mother and the consignor.The party shall obtain the child's parental rights if the contract so stipulates." Best interests for children" standing at the perspective of maintaining the interests of surrogate children,advocates that whoever may be more beneficial to the growth of the child shall get the parental rights of surrogate children.The above four theories,each has its own merits,and each has its own defects."Childbirth theory" is in line with the traditional understanding of society,but avoids the importance of "consanguinity" in the inheritance of children."Gene Theory" pays attention to consanguinity,but neglects the important role of childbirth in fertility."Contract theory" pays more attention to the subjective will of the e surrogacy parties,but it may violate the legal theory and ethics.While "Best interests for children" can better protect the interests of children,but in practice it is difficult to distinguish which party can give children the best interests in the future.This article tries to find a solution to balance the above values mentioned.This article holds that it is difficult to find a proper solution to identify the parental relationship by applying any single theory,and suggests to apply the four theories comprehensively according to the specific situations while making the best balance in practice by taking the advantages of a every theories and avoids conflicts between different social values.In my opinion,it should be centered on "Best interests for children" while applying different theories properly considering the age of the child.When its impossible to take every element into consideration,the law must make a judgment to chose the most important value while taking into account other values,so as to minimize the negative effects.