A Study On The Attribution Of Custody Of Illegal Surrogate Children In China

Surrogacy is absolutely forbidden by law in our country,but reproduction is a human survival instinct,and the "maintenance of genetic continuity" is one of the key elements of survival for any race.In order to obtain the special experience of parenthood,groups of people who are unable to have children due to objective constraints have started to find alternative ways.Although the legal study of surrogacy has evolved from a vague stage to the present,there is still a lack of theoretical support and a gap in the issue of the custody of surrogate children.This has directly led to the lack of protection of the interests of surrogate children,such as how to determine the parental rights of the children,the theoretical basis of the decision on the refusal of the surrogate mother to deliver the children after the pregnancy is over,and how to determine the custody of the children,etc.The difficulty in solving these problems has caused the phenomenon of surrogacy to be unethical and moral to the society and the impact on the legal norms.Neither blanket legal regulation nor blanket prohibition of surrogacy is a good solution to the problem of surrogacy.Therefore,this article will devote four chapters to the issue of custody of illegitimate surrogate children.The first part explains the theoretical basis of illegal surrogacy child custody,analyzes the legal problems arising from illegal surrogacy at present,and analyzes the related concepts of surrogacy and illegal surrogacy,clarifies the concept of surrogacy and the specific division form of the theoretical circle.At present,the forms of surrogacy on the market can be roughly divided into four categories,some of which are the most controversial forms of surrogacy in practice,and also need to be discussed.Furthermore,combined with the analysis of the legal problems easily caused by surrogacy,it leads to specific legal provisions and legislative attitudes.China has a negative attitude towards surrogacy,but the surrogacy market has not been strictly controlled.With the development of the Internet,surrogacy websites are endless.Whether from the legal or ethical aspects,it is an urgent problem to be solved;because the legislation does not make clear provisions on the issue of illegal surrogacy,it leads to the difficulty of identifying the right of custody of illegal surrogacy children in judicial practice.Therefore,it is necessary to integrate various factors such as economic conditions and determine the parental rights of surrogacy children under the consideration of maximizing the interests of children.In international law,the doctrine of the attribution of custody of children born of illegal surrogacy can be divided into four categories : descent theory,childbirth theory,contract theory and the best interests of the child theory.Each theory has its advantages and disadvantages.Therefore,Chinese scholars have comprehensively considered the above theories and put forward the view of " comprehensive theory," which has important theoretical value.The second part focuses on the practical considerations of the ownership of the custody of illegal surrogacy children.It elaborates from three aspects : legal norms,practical investigation and the problems faced by the ownership of the custody of illegal surrogacy children.Due to the complexity of the interests involved behind surrogacy,if there is no clear and specific legal provisions to restrain,it will cause a sharp increase in the difficulty of legal implementation and supervision.From the perspective of China ’s current legal norms,it does not involve the attribution of custody of illegal surrogacy children.By summarizing the custody disputes of illegal surrogacy children in practice,it can be found that the problems mainly focus on the surrogate agreement and the determination of parent-child relationship.In judicial practice,we mainly take three classic cases as the research object.From the cases,we can find that there is no unified standard for the attribution of custody of illegal surrogate children in the current judicial judgment.In practice,only blood relationship is often used as the only standard to measure the best interests of children.Therefore,the attribution of custody of illegal surrogate children is an urgent problem to be solved,which has practical value.The third part explores the ownership of the custody of surrogacy children outside the region.Due to the different national conditions of each country,there must be different provisions on the ownership of the custody of surrogacy children.An analogy study of multinational legislation is carried out.On the whole,the attitude of each country to surrogacy can be roughly divided into three categories.The limited open attitude accounts for the majority,the remaining part adopts a completely prohibited attitude,and a very small number of countries are completely open.As the representative of the Anglo-American law system,the United Kingdom and the United States adopt a limited open attitude towards the issue of surrogacy,but the attribution of custody of surrogate children is different.The United Kingdom adopts the traditional principle of " the mother is the mother " to identify the legal mother status of the surrogate mother,and under the balance of the interests of the principal,the relevant conditions are also set to entrust the parents to obtain the custody of the children in the following situations,while the United States mainly adopts the principle of following precedent.As representatives of the continental law system,France and Germany adopt a strictly prohibited attitude towards surrogacy.France has clearly stipulated in the law that the custody of surrogate children belongs to the surrogate mother.Based on the analysis of the attribution of the custody of surrogate children in foreign countries,and combined with China ’s national conditions,this paper draws legislative inspiration from the relevant legal regulations to better solve the problem of the attribution of the custody of surrogate children : classify and discuss the custody rights under different types of surrogacy,and clearly stipulate the obligations of surrogate mothers.In the fourth part,based on the comparative study of China ’s national conditions and foreign legislation,although there is no unified standard for the attribution of the custody of surrogate children in judicial practice,we can see that there are different degrees of discretion from the perspective of the healthy growth of surrogate children.Therefore,the principle of the best interests of the children is established as the basic principle of the attribution of the custody of surrogate children in China,which is conducive to resolving the ownership dispute.At the same time,the legal obligation of the surrogate mother is clarified,and the adoption system is improved from the legislative spirit and purpose.In order to find the best way to confirm the custody of surrogacy children,the judgment basis of the priority of applicable principles is set for different situations of the custody of full surrogacy children,the custody of partial surrogacy children and the custody of special surrogacy children.