The Trial Of Surrogacy Cases In China's Judicial Practice

China has a ban on surrogacy.However,due to the continuous rise of infertility rate and the constant change of family structure,before the artificial reproduction technology can replace surrogacy,surrogacy behavior is not only forbidden but also increased due to the implementation of the two-child policy and the increase of the number of families losing their only child.Although the size of the population directly affected by surrogacy is small,the number of surrogate disputes is also small,the surrogacy cases often stir up huge social controversy.This kind of circumstance put forward a request to the judicial trial of surrogacy case: how to make a fair and just judgment through the existing relevant laws without clear legal provisions.There are two main issues concerning the surrogacy dispute in China: the validity of surrogacy contract;the parent-child relationship of surrogate children.Surrogacy contracts are not regulated by the contract law because they involve personal rights,and there are no provisions on surrogacy children in the adoption law.However,in China's judicial practice,who gives birth,who is the mother,this makes it difficult to identify the parent-child relationship of surrogacy children.Due to the lack of legislation,the court has the discretion in the trial of surrogacy cases.At this time,the different applicable laws will lead to inconsistent judicial decisions.As a result,the judgments of some surrogacy cases are not in line with the mainstream ethical and moral concepts of our country,and the social influence is not good,which is of no guiding significance to the subsequent cases.Surrogacy behavior is more than,surrogacy dispute case is also more than.Although there are no specific laws and regulations can be used,the court still has to make the right judgment on the surrogacy dispute based on the principle of "no judgment shall be refused".In this article,through the analysis of typical cases in our country,and the legal regulation and typical cases of surrogacy in other countries,I hope to find out the essence of the surrogate dispute focus in the judicial practice,and put forward the applicable institutional tools for surrogacy cases under the current law system in our country.Except the introduction and conclusion,this paper is divided into three chapters.The first chapter is an overview of surrogacy legal regulation: discusses the current situation of surrogacy legislation and the judicial practice of surrogacy cases in China,analyzes typical surrogacy cases,summarizes the dispute focus of surrogacy dispute,and the conclusion is that the essence of the dispute is the validity of the surrogate contract and the parent-child relationship of surrogate children.The second chapter analyzes the identification of the effectiveness of surrogacy contracts in different jurisdictions,and the identification of the effectiveness of surrogacy contracts in China,then clarifies that the available institutional tool is the principle of public order and good custom in the current legal system.The third chapter expounds four theories of parent-child relationship identification of surrogate children,analyzes the identification of parent-child relationship of surrogate children in different jurisdictions,and finds out the general principles.Then,analyzes the identification of parent-child relationship of surrogate children in China and the institutional tools available for judicial practice in the current legal system: judges the parent-child relationship of surrogacy children by applying the principles of the mother is the mother and the maximization of children's interests,and analyze the institutional tools for protecting the legitimate rights and interests of the parties.