Determination Of Ownership Of Guardianship Of Surrogate Children From The Perspective Of Child Rights Protection

Since the rise of the United States in the late 1970 s,the legal issues related to the custody of surrogate children have been heatedly debated.For China,the legal practice and theoretical controversy of the custody of surrogate children are accompanied by the “first custody of the child of the surrogate children in the country”.It has risen in China since 2014 and is accompanied by the final fall of the case.The hammer reached its climax in the last 2 years.At present,there is no clear legal provision in China on the attribution of custody of children born on surrogacy.At the same time,in our country,the principle of the best interests of children,which is of great significance to the protection of children's rights,also plays a very minor role in the legal recognition practice of the custody of surrogate children.On the one hand,the applicability of the legal principle itself is relatively vague,and the tradition of the application of judicial priority in China has led to the application of the principle of the best interests of the child in the specific judicial trials.On the other hand,although China currently lacks special legal provisions on the custody of surrogate children,in the process of applying specific cases,the former Ministry of Health has issued two regulations,“Management Measures for Human Assisted Reproductive Technology” and The Human Assisted Reproductive Technology and the Ethical Principles of the Human Sperm Library and the Supreme Court's 1991 reply have continued to play a key guiding role,which has led to the child's best interests principle being less considered when confirming the custody of surrogate children.Based on the protection of the rights of surrogate children and the reference to the theory and practice of custody of surrogate children in the United States and other countries,the study of this paper is based on the perspective of children's rights protection,and the path of custody of surrogate children is based on the principle of children's best interests.The structure of this article is mainly divided into the following six parts:The first part mainly introduces the basic theory of the custody of surrogate children,including the meaning and type of surrogacy,the legal disputes caused by surrogacy and the theoretical basis of legalization of surrogacy.The analysis of the basic types of surrogacy is to provide the basis for the classification of the custody of the surrogate children;and the originality of the legalization of surrogacy is because the legality of the surrogate is the basic premise for the custody of surrogate children.In the beginning,we advocated the illegal treatment of surrogacy,so there is no need to further study the custody of surrogate children.The second part mainly introduces the status quo of domestic and foreign legislation on the identification of surrogacy and the custody of surrogate children.At the same time,it is necessary to examine the custody rights of the surrogate children and the legal provisions of the current parent-child relationship law and custody rights in China.Under the premise that China's current law completely prohibits surrogacy,the analysis of the legal provisions on the surrogacy of surrogacy and surrogate children in foreign countries can provide ideas for the custody determination of surrogate children in China.The third part mainly analyzes the four mainstream doctrines related to the identification of custody rights of surrogate children: blood theory,childbirth theory,contract theory and children's best interests,and analyzes the footholds and deficiencies of each theory.To provide a premise for establishing the doctrine of the custody of surrogate children.The fourth part is based on the current mainstream doctrine research,maintains the basic recognition of the best interests of the children,and further recognizes the custody of surrogate children from the perspective of child rights protection,and analyzes this design.s reason.At the same time,from the perspective of children's rights protection,after looking at the other three doctrines,it is found that the issue of the custody of surrogate children is not important regardless of the doctrine.The key is whether the final judgment can guarantee the rights of children to the greatest extent and ensure the surrogacy.Children's interests.In the principle of the best interests of the childIt guides the basic approach to the custody of children of surrogate children,and expounds the basic content and value orientation of the principle of the best interests of children.The fifth part demonstrates the concrete path of the principle of the child's best interests in identifying the custody of surrogate children.First of all,when determining the custody of surrogate children,the interests of children should be placed in the primary position and protected against the interests of adults.Secondly,we must adhere to the status of the subject of rights and regard children as the real subject of rights.Thirdly,the principle of the best interests of the child belongs to the principle of international law,and it applies to the case as a transformation of domestic law to ensure its operability.Finally,the application of the principle of the best interests of the child must also integrate the right to family.At the same time,in the specific judicial practice,the principle of the best interests of the child should be used to determine the subjective wishes of the surrogate children who have the ability to express their wishes,the parties to the custody dispute,and the third person who is close to the children.To ensure that the custody of surrogate children meets the subjective wishes of both parties;at the same time,comprehensively evaluate the economic strength,parent-child ability,age,physical health and conduct of both parties to the dispute,and ensure the living conditions and interests of the surrogate children;Maintain the stability of the living environment of the surrogate children,meet the child's gender and age requirements,and maximize the realization of the child's best interests.At the same time,this paper attempts to provide a theoretical reference for legislation by analyzing the disputes over the custody of surrogate children under different types by using the principle of children's best interests.