A Study On The Identification Of The Parentage Of The Cross-border Surrogacy

Cross-border surrogacy paternity determination is not only a theoretical problem,but also a serious practical problem existing between different countries.The development of artificial insemination technology and the facilitation of cross-border tourism have continuously impacted the traditional family ethics and shaken the original stable marriage and family model.In fact,the issue of cross-border surrogacy affects the nerves of every relevant people.Hence the issue of the determination of parent-child relationship of cross-border surrogacy shall not be avoided by law.Cross-border surrogacy paternity determination will not only be affected by a country's politics,economy,culture,religious beliefs,social environment and other factors,but also lead to a series of legal conflicts due to different provisions on paternity determination in domestic laws of various countries,bringing a brand-new topic to the field of private international law.At present,it is sometimes difficult to make a fair and reasonable judgment if the problem of determining the parent-child relationship of cross-border surrogacy is still avoided at the legal level,thus damaging the rights and interests of relevant parties.Therefore,this paper probes into the issue of the determination of parent-child relationship in cross-border surrogacy,taking theory as the basis,problem the direction and specific path the goal.On the basis of sorting out and analyzing the conflicts existing in the legislation and judicial practice of the determination of the parent-child relationship of cross-border surrogacy,this paper aims at presenting some relevant suggestions to provide assistance for its theoretical development and judicial justice.In addition to the introduction and conclusion,the main body consists of four parts:The first part defines the identification of parent-child relationship of cross-border surrogacy and demonstrates the necessity of its research.Firstly,starting with the concepts of surrogacy and cross-border surrogacy,this paper defines what the cross-border surrogacy paternity is.Secondly,in order to better balance the interests of all parties involved in cross-border surrogacy and to further clarify the causes of the issue,the subjects involved in the parent-child relationship of cross-border surrogacy are dissected.Finally,the paper demonstrates the necessity of the research on the determination of the parent-child relationship of cross-border surrogacy from four aspects: confirming the nationality of the surrogate children,protecting the reproductive rights of the entrusted parents,protecting the rights and interests of the surrogate children and protecting the family and privacy rights.The second part discusses the problems existing in the determination of parent-child relationship of cross-border surrogacy.Combined with the domestic substantive laws of different countries,this paper expounds and analyzes the legal conflicts existing in the determination of parent-child relationship of transnational surrogacy through the way of interspersing typical cases.In addition,This part focuses on the analysis of the legal conflicts of surrogacy,the basis for determining parent-child relationship,jurisdiction,legal application and the legal effect of recognition of foreign official documents.The laws of various countries have different prohibitions and restrictions on surrogacy,resulting in the parties choosing the court and forming "surrogacy travel" of parent-child relationship.Meanwhile,the different provisions on the determination of surrogate children's parent-child relationship in the domestic laws of various countries also cause conflicts in the determination of cross-border surrogate parent-child relationship.In view of the validity of valid surrogacy abroad in China,the receiving country generally refuses to recognize the official documents of foreign parent-child relationship cognizance on the grounds of violating the public order and legal provisions of the country,denies the parent-child relationship between the entrusted parent and the surrogate child,and fails to protect the rights and interests of the surrogate children to the greatest extent.In view of the validity of valid surrogacy abroad in country,the receiving country generally refuses to recognize the legal effectiveness of foreign filiation documents on the grounds of violating its public order and legal provisions,and denies the filiation between the entrusted parent and the surrogate child,thus failing to protect the best interests of the surrogate child.Therefore,clarifying the problems existing in the determination of the parent-child relationship of cross-border surrogacy and the countermeasures for the symptoms are helpful to find a "effective medicine" for the determination of the parent-child relationship of cross-border surrogacy.The third part,on the basis of the above research,clearly puts forward the proposal to regulate the determination of parent-child relationship of cross-border surrogacy through the formulation of multilateral treaties.First,it demonstrates the necessity of making multilateral treaties.There are great differences in the domestic laws of various countries regarding the legal parent-child relationship of cross-border surrogacy,whether it is jurisdiction,application of laws or recognition of legal parent status already established abroad;The existing Adoption Convention also has disadvantages in regulating surrogacy.In addition,surrogate children who have lost their legal parents are at risk of infringement throughout their lives.Therefore,it is necessary to formulate multilateral treaties to improve the identification of parent-child relationship of cross-border surrogacy.Secondly,the framework of multilateral treaties is conceived.Seven parts included in Multilateral treaties are aims and purposes;Adhere to the principle of the best interests of children;The validity of transnational surrogacy contract;Jurisdiction;Application of law;It contains the recognition mechanism of legal official documents and the establishment of cooperation mechanism in seven aspects.The fourth part mainly puts forward some suggestions to improve the identification of parent-child relationship of cross-border surrogacy in China.First of all,our country shall gradually recognize the legitimacy of free surrogacy,while at the same time,we should strictly limit the conditions for free surrogacy,such as the conditions for surrogacy of other eggs,the use of medical technology,and the restrictions on the qualification of entrusted parents.Secondly,from four aspects of general principles,jurisdiction,application of laws and prudent application of public order,we will improve the relevant legal system for the determination of parent-child relationship of cross-border surrogacy.In the end,the author puts forward some solutions to the special situation of the determination of the parent-child relationship of cross-border surrogacy,so as to fully protect the legitimate rights of surrogate children.