Cross-border Surrogacy's Conflict Of Laws And Its Solutions

With the popularization of artificial assisted reproduction technology,surrogacy has become possible and aroused worldwide concern.Due to the similarities and differences of legal regulations of surrogacy in each country and the development of modem communication,cross-border surrogacy has become popular in the global scope.Different countries have different attitudes towards surrogacy,which leads to increasing conflicts of cross-border surrogacy.In some States,surrogacy arrangements are expressly prohibited by law.This approach is generally based on a policy perspective which views such agreements as a violation of the child's and the surrogate mother 's human dignity.In some States,surrogacy arrangements are expressly permitted and regulated by law in order to balance the principle of human discretionary and prevent surrogacy.Countries that allow surrogacy fully palace freedom of contract at the forefront of social life.The conflict of laws of surrogacy agreements and its enforcement show that the surrogacy agreement is invalid,the agreement is valid but not enforceable,and the agreement is valid and enforceable.There are four theories about the establishment of parentage,first theory is Mater semper certa est.The second theory hold the point that genetic parents are children's legal parents.The third theory indicates that the legal parents should be made clear in cross-border surrogacy agreements.At the last theory,the supporter held the point that children's best interest is the most important thing which should be considered when people ascertain the legal parentage of the children.At present,most countries do not have specific conflict rule about the cross-border surrogacy.According to the segmentation theory,different laws would be applied in different parts.In addition,the principle of autonomy of will and the principle of the closest connection also play a key role in determining the proper law.The applicable law rules in relation to legal parentage arising by agreements are particularly diverse.While many common law jurisdictions apply the lex fori,in other jurisdictions a broad range of connecting factors may be applied either in the alternative or in a cascade:e.g.,the nationality,domicile of the child,the domicile,nationality of one or both parents or the State of the child's birth.The topic of the private international law issues surrounding the cross-border surrogacy has been on Hague Conference work agenda since 2010.So far,10 reports have been published,summarizing the domestic legal regulation and conflict rules of surrogacy.The desirability and feasibility of future work in the private international law issues surrounding legal parentage/surrogacy project has been deeply discussed.At present,the Group considered the following matters during its fourth meeting:the possibility of accepting foreign public documents on legal parentage,the possibility of determining the jurisdiction,the possibility of unifying the applicable law rules on legal parentage,the possibility of recognizing the foreign judicial decisions concerning legal parentage.In China,the prohibition of a surrogacy is mainly embodied in the?Human Assisted Reproduction Technology Regulation?,which stipulates that medical institutions and medical personnel are prohibited from performing surrogacy operations,but it not prohibited people from being the intended parents or surrogate.Surrogacy mostly exists in the form of semi-underground and unofficial in our country.And recently,cross-border surrogacy has been arising.In practice,the court's judgement of legal parentage arising from cross-border surrogacy is inconsistent,which makes the right of intended parents and the children in an unstable state.Therefore,on the one hand,it is necessary to speed up the legislative process of surrogacy in China and perfect the applicable law rules;On the other hand,we should take an active part in the Hague Conference of Private International Law and to represent China's voice in the process of formulating the international convention on cross-border surrogacy;In addition,regional cooperation should be actively promoted and agreement should be reached with neighboring countries on the rules of jurisdiction,recognition and enforcement of the judgement.