On The Ownership Of Custody Of Children Born By Surrogacy

At present,the prohibition of surrogacy in China is not only continuous,but also has a tendency to become more and more severe.However,the relevant legislation in China has been hesitant,which brings great challenges to judicial practice.At present,the cases related to surrogacy mainly focus on the identification of the guardianship of the children born by surrogacy,but the existing laws related to guardianship cannot be applied to the issue of surrogacy,and the newly issued Civil Code does not give us the answer to the determination of the parent-child relationship of surrogacy.With the increase of the number of cases,the inconsistency of judicial practice gradually challenges the stability and authority of the judiciary.It is necessary to unify the judicial practice as soon as possible to ensure the harmony and stability of the family and maintain the authority of the law.Through reviewing judicial practice in China,we can conclude the following problems: First,most of the judgments deny the validity of surrogacy agreements.Secondly,although the consideration of children's interests has become a consensus in judicial practice,there is no unified understanding of children's interests,nor can the interests of other subjects be reasonably balanced;Finally,there is a substantial contradiction between the judgment result and reasoning.To provide a feasible solution to such disputes in judicial practice,we can draw experience from the summary laws of countries that have legislated,such as categorization of dispute settlement,maximization of children's interests,granting surrogacy mothers the right to withdraw,etc.Different countries have different realities,but the maximization of children's interests has become an international consensus.Therefore,when determining specific solutions,this principle must be taken as the bottom line through all links,and at the same time,the interests of all parties must be balanced to the greatest extent.To truly realize the maximization of children's interests,we need to grasp three key points: first,simplicity,double-line care and dynamic guardianship and other viewpoints are not advisable;The second is stability.The one who forms the relationship of "factual fostering" has absolute advantage.Third,it is predictable.The maximization of children's interests should be applied to different types of surrogacy in advance,and the general rules for the ownership of custody of children born by surrogacy should be established in advance,so as to avoid the uncertainty brought by relying entirely on individual cases.After clarifying the value orientation of maximizing children's interests,in order to balance the interests of all parties to the greatest extent,the author explores the general path of dispute resolution according to different types of surrogacy.For gestational surrogacy where the surrogate mother does not provide germ cells,the "contract theory" should be applied,which recognizes the validity of the surrogacy agreement,and the entrusting party can obtain the custody of the children according to the direct agreement;As for the genotype surrogacy of the reproductive cells provided by the surrogate,the situation is relatively complicated,and the author believes that the practice of the United Kingdom,California(with South Africa)and Russia can be comprehensively used for reference--giving priority to the application of "the mother who gives birth".Specifically,the surrogate mother is given a period of consideration during which the surrogate mother has custody of the child and if the surrogate mother is married and agrees with her husband,his husband is presumed to be the father of the child.The surrogate mother has the right to cancel or rescind the agreement within the period of time.Once the surrogate mother explicitly waives the parental rights or does not explicitly claim the parental rights,the surrogate mother shall not go back on her word after the period of time.For the positive internal conflicts of the surrogate party,the theory of "factual fostering" is adopted.The party who has formed the factual fostering relationship has absolute priority.The other forms of internal conflicts can be dealt with in accordance with Article 27 of the Civil Code and other relevant provisions.For the single and gay groups can be applied to the relevant provisions such as illegitimate children,lesbian groups should apply to the "childbirth theory";For the negative conflict that neither party is willing to raise,for the sake of maximizing the interests of children,it should not be determined by the court compulsion,the actual responsibility of raising and keeping can be handed over to the social welfare institutions,and at the same time,the entrusting party is required to pay the cost of raising before adulthood.The best way to regulate problems related to surrogacy is to issue specific laws and regulations or carry out effective supervision.However,it is difficult to achieve in view of the reality at present.Under such circumstances,the author believes that since a total ban cannot be achieved,restricted liberalization is a second-best choice,and a feasible choice to maximize the balance between social order and individual rights.