Astudy On The Ownership Of Guardianship Of Surrogate Children And Legal Protection

Acts of surrogacy have resulted in parental and family legal relationships that are different from those of traditional parenthood.They include the legal relationship between surrogacy contract parties,the legal relationship between surrogate children and pregnant mothers and surrogate parents,and the legal relationship between the respective family members of surrogate children,pregnant mothers,and consignment surrogacy etc.However,based on the above legal relationship,whom the custody of surrogate children belongs to,in the face of such new issues,the legislation does not have an answer,but the litigation that has occurred has become a real challenge in the judicial field.For the“First National Case of the Guardianship of the Surrogate Child”,from Minhang District of Shanghai People's Court Judgment and Shanghai No.1Intermediate People's Court Judgment,the court of the two trials adopted the opposite view.Therefore,how to judge and how to find the basis for guardianship claims of surrogate children is a realistic and pressing issue.This article believes that by revisiting the nature of guardianship,the general principle of determining custody of surrogate children,namely,the principle of the best interests of children,will be explored as the major premise of the jurisdiction.From the perspective of legal hermeneutics,we should choose the proper legal path,recognize the factual custody and maintenance relationship as a kinship,and consider the factors such as the willingness and guardianship ability in surrogacy,so as to provide the most logical force for the attribution of custody rights.