A Study On Recognition And Enforcement Of Foreign Judgment On Cross-border Surrogacy

Surrogacy,especially cross-border surrogacy,is a difficult problem for today's international community.To the society,scholars and courts,surrogacy is always a hot topic since the case Baby M in 1970.Due to the legislation difference on surrogacy,and people's pursuit to money and forming a family,cross-border surrogacy has become a big and profitable business.With the increasing number of cross-border surrogacy,the problem is gradually emerging.The core problem is parentage determination.The courts of the birthplace of surrogate children tend to make judgments to confirm the parentage of the intent parents and the surrogate children.However,these judgments are hard to be recognized and enforced in intent parents' own countries.Sadly,surrogate children are the most innocent victims under this circumstances.To solve this problem,in 2010,the Hague Conference on Private International Law(HCCH)carried out a project to protect children's interests and make efforts to for conventions on recognition and enforcement of cross-border surrogacy judgments.In addition,in the aspect of the tendency of judgments,such as German courts,French courts and European Court of Human Rights,courts are more willing to recognize the judgments on cross-border surrogacy.When making a decision,the application of public policy is of vital importance.Therefore,the core of the recognition and enforcement of cross-border surrogacy judgments is public policy.This dissertation has four parts.The first part is an introduction to relevant concepts and background.The first verse focuses on the meaning and standard of cross-border surrogacy as well as its effects.Cross-border surrogacy is one kind ofsurrogacy.HCCH uses domicile as the standard of cross-border.The second verse discusses the necessity of the recognition and enforcement of the judgment on cross-border surrogacy.Because of the particularity of surrogacy,cross-border surrogacy will have an impact on economy,law and values of every country involved.The refusal to recognize the judgment on cross-border surrogacy will make the parentage uncertain,which will badly harm children's interest.Therefore,the legality of refusing to recognize the judgment on cross-border surrogacy for the reason of public policy still remains open to question.From the point view of the goal of public policy and the requirement of the principle of children's best interest,the application of public policy should be restricted.Currently,the attitude towards the recognition and enforcement of the judgment on cross-border surrogacy has changed accordingly.Based on the discussion above,the third verse talks about the content and speciality of the judgment on cross-border surrogacy,i.e.the complexity of public policy.The second part analyses the practice of refusal to recognize the judgment on cross-border surrogacy.The first verse discusses the public policy of the prohibition of surrogacy from the point view of the legislation and introduces some typical cases.The difference between legislation on surrogacy is huge,which is mainly caused by different degree of protection of different values.Some countries think surrogacy is against ethics because it objectifies women and children;some countries put reproductive right in the first place.Also,personal dignity cannot be infringed if the surrogate mother agrees to surrogate.The second verse analyses the reason of refusal to recognize the judgment on cross-border surrogacy based on the legislation on parentage.Parentage determination is an important part and main aim of the recognition of the judgment on cross-border surrogacy.There are mainly four standard of parentage determination,delivery,gene,autonomy and children's best interest.The difference standard of parentage determination is also a reason for the difficulty of recognition of the judgment on surrogacy.The third part deals with the trend of the recognition of the judgment on cross-border surrogacy,which is from totally refusal to partial recognition.The first verse discusses the basic reason for the change of the attitude towards surrogacy.In the aspect of the trend of legislation,the countries which used to prohibit surrogacy started to legalize surrogacy to some degree;the countries which permit all kinds of surrogacy began to restrict it.These two categories of countries tend to reach consensus within the scope of permitting certain categories of surrogacy.The secondverse starts from the trend of the recognition of the judgment on cross-border surrogacy and discusses the theoretical basis and judgment pattern.The segmentation theory is used in the recognition of foreign judgment and arbitration award more frequently,which is also the theoretical basis for partial recognition of judgment on cross-border surrogacy.As a method of restriction on the application of public policy,interest analysis focus more on human right protection.It should also be clarified that even some countries began to recognize the judgment on cross-border surrogacy,it is still restricted in some aspects,i.e.under the circumstance that one intent parent is genetically related to the surrogate child and the parentage between this parent and the child is not against the laws.The parentage which is against the legislation cannot be recognized.The last verse introduces some recent development of HCCH and EU as well as the feasibility of applying the Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption in cross-border surrogacy.The fourth part provides suggestions on the recognition of the judgment on cross-border surrogacy in China.The first verse describes the strong need of cross-border surrogacy in China and introduces the current legislation and judgment on surrogacy.Based on the discussion above,our country should make some legislative changes on jurisdiction and law application for easier recognition of the judgment on cross-border surrogacy.Finally,China should take an active part in making international conventions on cross-border surrogacy.Public policy should be restricted when applied.For children's best interest,the courts should try best to partially recognize the judgement on cross-border surrogacy.