Research On The Identification Of Parental Rights Of Children Under Transnational Surrogacy

The development of assisted reproductive technology has provided technical conditions for the generation of surrogacy,deriving a variety of surrogacy types.Intended parents in countries where surrogacy is prohibited turn to countries where surrogacy is open to seek surrogacy,resulting in transnational surrogacy.In the context of the conflict of family laws and different family concepts in various countries,although the act of surrogacy has been successfully implemented,the confirmation of parental rights between the surrogate child and the intended parents has been repeatedly hindered in practice,leaving surrogate children without legal parents in intended parents’ country,resulting in the problem of “lame” parent-child relationship.The root cause of this problem is the conflict of laws between countries.In the identification standard of parent-child relationship,there are childbirth standard,gene standard,willingness standard and children’s best interests standard,and there are conflicts between various standards,and the traditional standards are flawed in dealing with surrogacy.In terms of conflict rules of parent-child relationship,most countries do not have special conflict rules of parent-child relationship of surrogacy.Instead,general conflict rules for parent-child relationships are applied,which can create contradictions in connecting factors,and mostly point to the laws of the intended parents’ country.With regard to the recognition of parental rights documents,the intended parents’ country often applies the reservation of public order to reject the validity of parental rights documents.To address the issue of international surrogacy parental rights recognition,there is a growing effort internationally as well as in individual countries to explore paths towards a solution.In terms of developing regulations,the HCCH has discussed the feasibility and necessity of establishing a cross-border surrogacy convention.In terms of practical solutions,options include recognizing parental rights through acknowledgement,adoption,and establishing parental rights based on the best interests of the child principle.Summarize the successful cases in the world,and analyze the advantages and disadvantages of the practical approaches from the perspective of comparison,so as to provide experience for solving problems in China.On this issue in China,,the relevant rules are not perfect,and there are problems of lack of rules and weak pertinence,which also leads to problems such as different judgments in the similar case in judicial practice.It is difficult to amend our legislation in reality,so it is necessary to use relevant rules under the current legal framework and absorb the wisdom of judicial judgment to promote the solution of the problem.First of all,we should adhere to the principle of differentiation,separating the will to raise in the surrogacy agreement,separating the validity of the surrogacy act and the parent-child relationship,and separating identification of legal father and legal mother.Secondly,it is necessary to enhance the applicability of the principle of the best interests of the child,increase specific applicable standards,and rely on the investigation system to ensure.Third,improve the identification method of cross-border surrogacy paternity in China,taking genetic connection as the boundary,and establish the recognition method under complete genetic linkage,the stepparent and child method under partial genetic linkage,and the adoption method without genetic linkage.Finally,China should actively participate in the discussions on this issue at the Hague Conference,fulfill its international obligations to protect children,and actively promote the formulation of a transnational surrogacy convention.