Research On The Rule Of Judicial Determination Of Surrogate Child Custody

With the progress of society and the development of science and technology,the technology of surrogacy is becoming more and more mature.The prevalence of various surrogacy institutions makes surrogacy develop into a new "industry".The existence of this objective situation makes the traditional parenting relationship identification suffer impact.At present,surrogacy is forbidden in our country,but the development of surrogacy technology can not be prevented by law.The legalization of surrogacy does not affect the reality that the legitimate rights and interests of surrogacy children need to be protected.The changing objective situation must be regulated by legal means.Because surrogacy has not been legalized in China,the problems caused by surrogacy are endless.The most common problem is related to the custody of surrogacy children.Among them,the cases between the client husband and the surrogate mother competing for the custody of their children account for a large proportion.The invalidity of surrogacy agreement results in that the parties to the agreement will not suffer legal punishment for "breach of contract".Through the emergence of the first case of surrogate disputes in China,we can see that surrogate children have existed,and the disputes of custody and custody caused by surrogate children have been the focus of social concern.The way of surrogacy is not the only one.There are complete surrogacy and incomplete surrogacy.The civil subjects involved are also different,so the relationship between them is chaotic and complex.In judicial practice,the judgment standard of custody of surrogate children is not uniform,which will not only have a serious impact on the judicial authority,but also can not reasonably protect the legitimate rights and interests of surrogate children.In the draft of civil code of China,the provisions for minors also embody the principle of "the best interests of children".Surrogate children are also children,whose legitimate rights and interests should be protected.The general principles of civil law of our country has very perfect provisions on guardianship system,and the marriage law,adoption law and relevant judicial interpretations also have provisions on guardianship and upbringing.At present,there are four kinds of children in our country,including children born in wedlock,childrenborn out of wedlock,adopted children and stepchildren.Therefore,it is not feasible that the existing provisions on custody or upbringing of children can be directly applied to custody disputes of surrogate children.We should review the recognition standards of custody of children in foreign countries,sort out the current situation of the development of surrogacy technology in China and distinguish different types of surrogacy in essence,and take the principle of "best interests of children" as the primary consideration,summarize the applicable judicial rules for children born by different surrogacy methods.