Research On International Private Law Of Transnational Surrogacy

The rapid development of Assisted Reproductive Technology makes surrogacy possible.In the context of the change of family structure,the increase of infertility and the gradual legalization of same-sex marriage in modern society,surrogacy has become the only way for these groups to get children with blood relationship.However,surrogacy is forbidden in many countries because of the subversion of traditional family concept and the destruction of family structure model in traditional countries.Because of the conflict of laws and regulations on surrogacy in different countries,the phenomenon of transnational surrogacy has emerged.The emergence of transnational surrogacy has also intensified the attention of countries to the phenomenon of surrogacy.However,due to the different attitudes of each country to the phenomenon of surrogacy and the lack of uniform substantive law norms in the world,the legal problems of transnational surrogacy emerge in endlessly.The civil law countries such as Germany,France have totally no attitude towards the prohibition of surrogacy,and they totally do not recognize the transnational surrogacy agreement and parent-child relationship;Britain,Israel and other countries have gradually changed from the attitude of comprehensive prohibition to limited open surrogacy,limited recognition and implementation of transnational surrogacy agreement;the United States,India,Thailand and other countries have a comprehensive open attitude towards surrogacy,by the way the relevant regulatory measures are also being gradually established.At present,our country still holds the attitude of forbidding surrogacy completely,but the number of transnational surrogacy in our country is increasing day by day.This emergency of phenomenon is the blank of legislation.About surrogacy,China has not considered any legislation on whether surrogacy itself is legal,whether surrogacy agreement is valid or not,and the determination of parent-child relationship.Only the administrative regulations on surrogacy promulgated by the Ministry of Health stipulate the prohibition of surrogacy,but this regulation is only a principled attitude,not a specific detailed regulation.Comprehensive prohibition of transnational surrogacy does not limit the occurrence of surrogacy,which is a problem that many countries are now gradually consciousness.The development of the deep exploitation industry chain and the damage of the rights and interests of the tripartite main body of surrogacy caused by the comprehensive opening of surrogacy without legal guidance have also alerted those countries that have fully opened surrogacy.The rise of the phenomenon of transnational surrogacy has made the surrogacy behavior more complicated after having foreign-related factors.The relationship between rights and obligations is also difficult to distinguish because of foreign-related factors.The application of the law is caused by the different nationality of the main body.Transnational surrogacy urgently needs legal regulation and adjustment.Private international law,as an international legal norm regulating the emergence,alteration,termination and settlement of disputes in international civil relations with conflict of laws or application of laws,should give full play to the unique nature of private international law when transnational surrogacy occurs in large numbers,accelerate the unified norms of private international law on Transnational surrogacy among countries,and make transnational surrogacy act legal.The application of law can be based on law,and better protect the legitimate rights and interests of surrogate actors.This paper is divided into four parts.The first part defines the concept and essence of transnational surrogacy,and then highlights the difference between transnational surrogacy and traditional surrogacy by comparing transnational surrogacy with domestic surrogacy.Then it elaborates the status quo of transnational surrogacy,which is divided into international and domestic status quo.The second part elaborates the conflict of legal application of transnational surrogacy.Because the fundamental reason for the emergence of transnational surrogacy lies in the different legislation of different countries,which leads to the conflict of law application,the second part of this article compares and analyses the most contradictory and conflicting aspects of the application of transnational surrogacy law(whether surrogacy is legal,whether surrogacy agreement is valid,whether to recognize the relationship between surrogacy and children).The third part is the focus of this article,the solution to the conflict of laws of transnational surrogacy.The article divides the conflict of transnational surrogacy into two parts: conflict law solution and substantive law solution.It discusses the application of law when parent-child relationship and surrogacy agreement conflict occur,and then makes rational discussion on the application of Public Order Reservation system.In the part of substantive law solution,the article draws lessons from and summarizes the present stage of our country.At present,the relevant international provisions on Transnational surrogacy and the legislative provisions and regulatory mechanism on Transnational surrogacy are put forward,and the relevant solutions are put forward.The fourth part analyzes the current situation of our country,first of all,it expounds the problems existing in the phenomenon of cross-border surrogacy in China,and then it puts forward relevant countermeasures and suggestions from the aspects of substantive law and conflict law.