A Study On The Identification Of Motherhood Under Human Assisted Reproductive Technology

The development of in vitro fertilization-embryo transfer technology has realized the parent-child expectation of infertile women through non-sexual assisted methods,but because reproductive technology has changed the closed natural reproductive process,it has also created many staggering combinations of identities.In the field of medically assisted reproduction,egg donation,intrauterine pregnancy,and vaginal delivery can be separated,which leads to the possibility of different types of mothers after the child is born: one is a genetic mother who provides eggs for the child,and the other is gestational mother with fetus.At the same time,the development of the market economy has also given birth to an intended mother who is looking forward to raising children.Due to the exclusive characteristics of kinship status,the law has to choose one of the above three types of mothers as the legal guardian of the children.Regarding the answer to the question of who is the mother in the legal sense,developed countries in Europe and the United States have formed a relatively complete legal regulation system,while my country’s law is still in the developing stage.Before legislation officially responded to this issue,some scholars tried to explore the origin of parental rights from the theory of reproductive rights or genetic property rights.According to the theory of reproductive rights,whoever exercises reproductive rights is the mother in the legal sense.Although this conclusion is consistent with common-sense intuition,no consensus has been reached on how to determine the subject of reproductive rights in reproductive activities involving multiple parties.According to the theory of genetic property rights,the provider of genetic material has ownership of the embryos carrying their own genetic factors,and with the development of embryos,ownership evolves into mother’s rights.However,regarding genetic property rights as the source of parental rights will not only fall into the stereotype of property law theory,but also violate the development trend of modern parent-child law to protect the interests of children.Instead of seeking the theoretical sources of mothers’ rights,more and more scholars pay more attention to the subjective meaning of being a mother,because the existence of personal meaning will directly affect the quality of child rearing.The criteria for determining motherhood based on individual childbearing intentions can be subdivided into two types: the first is based on identity agreements,and the second is to assign parental rights and obligations based on the mutual wishes of intended mother and her spouse.As far as the former is concerned,because the ethics of kinship status does not match the property nature of the contractual relationship,the subject of artificial reproduction cannot create a mother-child relationship through a contract.At the same time,even if the supporters believe that the identity agreement is legal because it does not violate public order and good customs,the identity agreement lacks enforcement power because the agreement involving personal services cannot be enforced.As far as the latter is concerned,the standard of common will lacks strong tolerance,and it cannot radiate unmarried couples,same-sex couples,and mother-child relationships in situations where reproductive technology is misoperated.In addition,once this standard is adopted,new legal risks will arise,such as objectification of children,violation of the principle of equality,and regulation of artificial reproductive technology.Contrary to the focus of the above three theories,this paper argues that there is still room for application of the criteria for establishing motherhood based on biology.First of all,both blood relationship and childbirth are the criteria for identifying motherhood.When the two are separated and one has to be chosen as the essence of motherhood,gestation is still a more important factor than most people are willing to admit based on the concept of pregnancy obligations and legislative protection.Secondly,based on the respect of women’s reproductive value,this paper proposes the principle of presumption of legal mother,that is,the gestational mother is preferentially presumed to be the legal mother of the child.On the one hand,the principle of presumption of legal mother can not only include the mother-child relationship of natural reproduction,but also accommodate the mother-child relationship of artificial reproduction,which has a strong elastic function.On the other hand,as a variant of the principle of “Mater semper certa est”,the principle of presumption of legal mother can not only retain the advantage of quickly confirming the identity of the mother,but also respect the personal wishes of the participants in artificial reproduction.Thirdly,attach importance to the realism of blood relationship and introduce the mechanism of identity denial.When the gestational mother voluntarily renounces the presumption of identity or her whereabouts are unknown,genetic mothers other than donating egg cells are allowed to directly obtain legal motherh.When neither the genetic mother nor the gestational mother wishes to be the legal mother after the birth of the child,the birth mother can remove the presumption of status in accordance with Article 1073,Paragraph 1 of the Civil Code,and request the court to compel the parentage of the genetic mother and the child relation.It should be noted that when the biological mother is an egg cell donor,the egg donor cannot claim the parent-child relationship with the child with her own genetic genes,nor can the gestational mother force the parent-child relationship to be confirmed.Finally,in designing the rules of legal mother,pay attention to the interests of artificially procreating children.When the intended mother repents,based on the fairness and rationality of the system design,the gestational mother’s right of denial will be subject to necessary restrictions.However,in order to reduce the risk of opportunism of the intended mother,she must bear corresponding responsibilities for the children in the form of paying child support.In this way,the absolute protection of the basic living rights and interests of children can be realized.