The Balancing Of Interests Of Recognition Of Transnational Surrogate Parentage

In accordance with subject classification,the recognition of transnational surrog ate parentage involves interaction interests,children’s interests,public interests.Subje ct classification reflecting the application of interest preference,these interests are ta ken severally as the core.Interaction interests are embodied in the interests of inten ding parents and surrogates of surrogacy agreements;children’s interests are embodi ed in the best interests of children;public interests are embodied in public order.I n addition to the relationship among interests,the balancing of interests in the reco gnition of transnational surrogate parentage is concerned with value evaluation for p roportionating.The interaction interests in the recognition of transnational surrogate parentage affect the determining basis of legal parents.There is much difficulty for gene met hod to determine the intent-centered parentage in surrogacy,intent method makes u p for the deficiency of gene method.In some cases,such as breach of surrogacy a greement,invalidity of surrogacy agreement,the intent method may not exert.If int ending parents violate the surrogate agreement,surrogate children face the risk of a bandonment.Estoppel is not a better solution.Precautionary measures and conseque ntial measures are better resolution.On the one hand,the risk of abandonment of s urrogate children will be reduced to a low level;on the other hand,the intending parents who violate the surrogate agreement should be punished and restricted,and the adoption mechanism of surrogate children should be improved.Application of r apid return of children gets rid of surrogate’s breach.The influence of the specialty of identity relationship on the recognition of transnational surrogate parentage is re flected in the public interest;the invalidity of surrogate agreement caused by non-id entity reasons needs to consider the real intent of the parties,the interests of surro gate children,etc.The best interests of children provide the perspective of children for the recog nition of transnational surrogate parentage.Based on the uncertainty of its connotati on,the best interests of children are faced with the following risks in the recogniti on of transnational surrogate parentage: lack of specific standards and consideration s,lack of consideration of conflicts of interests,subjectivity of the value standard o f children’s best interests.Articles 3,7 and 8 of the United Nations Convention on the Rights of the Child stipulate respectively the best interests of the child,the ide ntity of the child and the nationality of the child,but the risk of the best interests of the child is not fully taken into account.The Expert Group Meeting of the Hag ue Conference on Private International Law focused on the conflicts of interests.O n the one hand,dealing with risks requires comprehensive analysis of the interests in the recognition of transnational surrogate parentage;on the other hand,dealing w ith risks requires examining practices and summarizing specific standards and factor s.Specific standards and factors of children’s best interests are not absolute and clo sed,including but not limited to the de facto life,the consent of surrogate,the inte grity of intending parents,and the rationality of remuneration for surrogacy.The public interests in the recognition of transnational surrogate parentage is e mbodied in the preservation of public order of the receiving country.Non-recognitio n transnational surrogate parentage based on the public order of the receiving count ry may lead to the risk of entry-exit,statelessness and committing crimes.It is nec essary to restrict the application of public order preservation in the recognition of tr ansnational surrogate parentage.The result shows that neither the theory of close co nnection nor the theory of international public order can deal with the risk of publi c interests in the recognition of transnational surrogate parentage.Based on the anal ysis of practice,on the one hand,the impact of human rights and other factors on the recognition of transnational surrogate parentage must be recognized when dealin g with risks;on the other hand,the two-level relationship analysis method is useful to analyze the relationship among public interests,children’s interests and intending parents’ interests in the recognition of transnational surrogate parentage,as well as the family relationship formed by parents and children.Through the respective analysis of three kinds of interests,the key to the bala ncing of interests in the recognition of transnational surrogate parentage lies in the balance between the benefit degree of protected interests and the damage degree of interests that have to be conceded.Achievement of the balancing of interests rests with implementation of alternatives.Such factors as the implementation of surrogacy agreement,the identification of surrogacy agreement,the protection of the identity of children must be taken into account.