Surrogate Child Custody Research

Many families form a society together,so family harmony is the foundation of social harmony.Children are an important part of family composition,not only related to the harmony within the family,but also affect the harmony and stability of the society.However,a considerable number of families are unable to have natural offspring for various reasons.According to the survey results released by China Population Association,the number of infertility patients in China has exceeded 40 million,accounting for 12.5% of the population of childbearing age.This is undoubtedly a heavy pain for the traditional Chinese families who are "three unfilial and have no future".Therefore,with the support of modern technology,surrogacy has become the best choice for these families with reproductive needs.However,surrogacy has separated the traditional process of childbearing,which has been criticized not only in law but also in ethics.At present,most countries do not recognize the legitimacy of surrogacy,and even in some countries,surrogacy without permission will face severe punishment.China’s legislative attitude also tends to prohibit surrogacy.However,this does not prevent the infertility families eager to have children from giving up surrogacy.The huge actual demand for surrogacy has led to the continuous growth of the "underground" surrogacy market,and even formed a relatively complete surrogacy industry chain.With the increase of the demand for surrogacy,the problems caused by surrogacy also come one after another,the most prominent one is the dispute of custody of surrogacy children.The direct consequence of surrogacy is the birth of new life.No matter how we evaluate and treat surrogacy,we should treat surrogacy children indiscriminately.After all,since the birth of any life,it has an independent personality,and the law has equal rights to protect its personality.The author sorts out and analyzes most of the cases that can be collected at present,and finds that there is not a legal standard or even a relevant judicial standard for the determination of custody of surrogate children in China,which results in the subjective discretion of the court judges not only unable to effectively protect the rights and interests of minors,but also causes other social problems due to the differences between the discretion.The separation of gene,childbirth and caregiving in surrogacy often leads to multiple parents of surrogate children.The complicated identity relationship makes custody disputes emerge constantly.In view of the difficulties faced by the determination of the custody of surrogate children,we should regulate it in a timely manner from the legal level so as to settle disputes and ensure the healthy growth of surrogate children.The author divides this paper into four parts: in the first part,the author mainly introduces the legislative and judicial status of the custody of surrogate children in China,and studies the theoretical model of the identification of parental rights and custody of surrogate children in the world,and finds and briefly summarizes the two major problems in the identification of the custody of surrogate children: the agreed standard of the custody of surrogate children And legal standards.The second part first analyzes the agreement standard of custody of surrogate children,that is,the validity of surrogate agreement,that is,the applicable space of contract theory.From the three aspects of legal provisions,the definition of public order and good customs,and the constituent elements of surrogacy agreement,the author expounds the effectiveness of surrogacy agreement in detail,and holds that we should not directly and easily negate its legal effect completely,but respect the self governance of will on the premise of reasonable and legal agreement,and give priority to the determination of the ownership of guardianship according to surrogacy agreement.In the third part,the author tries to apply the legal guardianship standards which are also used in traditional childbirth,such as blood relationship theory,childbirth theory and the best interests of children theory,to the determination of the guardianship of surrogate children,and studies the corresponding overseas classic cases.Through comparison,we find that these three standards have their own advantages and disadvantages in the determination of the custody of surrogate children,and the application of a single standard can not effectively solve the disputes of surrogate custody.In the fourth part,the author thinks that in the face of the complex disputes of surrogate custody,we can not apply a single standard,we should give full play to the advantages of the comprehensive standard.This paper proposes to establish the basic principle of comprehensive standards,and then based on this,we should first confirm the guardianship according to the legal and reasonable surrogacy agreement,and then according to different types of surrogacy priority to apply different standards to determine the guardianship when the contemporary pregnancy agreement is defective or invalid.Obviously,the blank of law,the little disciplinary effect of surrogacy,and the lack of moral constraints,surrogacy has gradually formed a certain market in China,resulting in numerous surrogacy mothers entering this gray area with different thoughts.Baidu search through the word "surrogate",a variety of surrogate sites and companies can be seen everywhere.In addition to the above-mentioned custody disputes,surrogacy has actually led to various other contradictions and disputes.How to protect the rights and interests of surrogate women,where to go for surrogate children abandoned by all parties due to congenital physiological defects,different judgments in the same case of surrogacy and the neglect of social effects by the court’s adjustment methods...Although these issues are not the scope of this paper,they are all from the side It shows that the legislation of surrogacy is becoming an increasingly serious key issue.If these problems can not be properly solved,it will not only damage the basic rights and interests of countless surrogate women,but also affect the harmonious development and order stability of society.