A Study On Private International Law In Transnational Surrogacy

This paper mainly explores the legal regulation problems encountered by transnational surrogacy in the practice of private international law with the "Mengsen case" as the starting point.The French citizen Monson and his wife went to California in 2000 to look for a chance to surrogate.The California Supreme Court ruled that the surrogacy agreement was valid and that the husband who provided the sperm,Dominique,was the father of the fetus and shared custody with the wife.However,the French authorities have reviewed the legality of their overseas surrogacy.The French Supreme Court made a decision not to recognize the judgment of the US court.The Monsen couple sued France as a defendant in the European Court of Human Rights.The European Court of Human Rights ruled in 2014 that the French Supreme Court rule violated the provisions of the European Convention on Human Rights.The article mainly discusses several common disputes and solutions in the case of transnational surrogacy cases.There are three disputes in international private law that are mainly discussed in the article.First,whether surrogacy is legal in different countries has different legal provisions.It is mainly divided into three types,countries that prohibit surrogacy,countries that prohibit commercial surrogacy,and countries that allow commercial surrogacy.Whether the surrogacy behavior in transnational surrogacy is the common focus of controversy in transnational surrogacy cases,secondly,the intentional parents often go to other countries that allow commercial surrogacy to sign a surrogacy agreement if the country prohibits surrogacy,then the surrogacy agreement is legal.Sexuality will be controversial among various regions.The final dispute of whether the surrogacy agreement is legal is the problem of parent-child identification in transnational surrogacy.In countries where surrogacy is prohibited,the parent-child relationship arising from the surrogacy agreement is often refused on the grounds of retaining public order.In reality,such a judgment also caused disputes over the identification of surrogate children.Through a large number of legal cases,this paper summarizes the legislative status andexploration path of legal surrogacy in various countries.It can be solved mainly from three aspects:(1)the positive role of public order in transnational surrogacy,combined with the "public order theory" and "the close relationship of public order",the establishment of international universal public order,the elimination of transnational surrogacy The battle for public order.(2)The validity of the transnational surrogacy contract can be determined according to the applicable law.Considering the characteristics of personal and property of the transnational surrogacy contract,the transnational surrogacy is solved by the two principles of “applicable autonomy” and “applicable personal law”.Disputes arising from the legality of the contract encountered.(3)To determine the parent-child relationship of transnational surrogacy based on the principle of maximizing children's interests,and to guide the issue of parental certification in transnational surrogacy under the premise of restricting the principle of “maximizing children's interests”.