Research On Regulation Of Surrogacy Behavior

Surrogacy is an artificially assisted reproduction method that has emerged as a result of modern medical technology and increased social demand,helping many infertile people to realise their wish to have children,but the emergence of surrogacy has also had an impact on traditional ethics,family structures and legal norms in China.At present,China’s legal system on surrogacy is not yet sound,and the state’s prohibitive attitude towards surrogacy is only reflected in some departmental regulations,which can regulate a limited range of subjects.At the same time,although the mainstream view in China does not recognise the legality of surrogacy,surrogacy continues to occur and surrogacy disputes abound due to the lack of specific legal regulation.The lack of legislation on surrogacy has made it difficult to resolve the core issues of surrogacy disputes,i.e.whether the surrogacy agreement is valid and how to determine the paternity of the surrogate child,and to properly handle surrogacy disputes.Therefore,China’s surrogacy legal system needs to be improved and perfected.Through sorting and analysing the legal regulation of surrogacy in China,the following problems exist at the current level of surrogacy legislation in China: firstly,the legal status of the existing system is low and its effectiveness is weak;secondly,the content of the legislation is single and lacks operability.Collecting judicial decisions involving surrogacy throughout China from 2012 to 2022,and selecting representative typical cases from them for analysis,the following problems in China’s judicial practice of surrogacy were concluded:Firstly,there is a lack of uniformity in judicial determinations and outcomes.In judicial practice,there are instances where surrogacy agreements are found to be invalid but the final judgement is actually consistent with the content of the surrogacy agreement.Secondly,the legal protection of the parties is weak,and the blanket invalidation of surrogacy agreements has made it difficult for both parties to form effective expectations of the behaviour of their children.Thirdly,there is an imbalance in the protection of the interests of the parties in the determination of paternity.Surrogate mothers and surrogate children are often in a vulnerable position in the determination of surrogate paternity,with surrogate mothers having difficulty in obtaining parental rights and the protection of the rights and interests of surrogate children being precarious.To sum up and draw inspiration from the legislation and judicial practice of surrogacy in overseas countries,and to build and improve the legal system of surrogacy in China based on China’s national conditions: Firstly,to strengthen the macro legal regulation of surrogacy by establishing a complete system of surrogacy regulation,unifying the rules of judicial adjudication of surrogacy disputes,and improving the supporting social security mechanism.Secondly,from the internal perspective of the surrogacy agreement,it was held that the clause in the property clause of the surrogacy agreement agreeing to pay compensation was valid,while the clause on payment of surrogacy remuneration was invalid;that the personal clause in the gestational surrogacy agreement was valid in principle,but the personal clause in the genetic surrogacy agreement was invalid;and that the clause binding the surrogate mother to exercise her right to abortion was invalid.Thirdly,the basic principles for determining the paternity of a surrogate child should be established,with the principle of the best interests of the child as the fundamental principle,and no specific provision should be formulated in contravention of this principle.In order to effectively resolve disputes arising from the determination of surrogate paternity,it is also important to balance the principle of balance of interests with the principle of limited autonomy.Fourthly,the specific rules for determining the relationship of surrogate children should be refined so that in the case of gestational surrogacy,the commissioning couple becomes the parents of the surrogate child in the legal sense as agreed in the surrogacy agreement,and in the case of genetic surrogacy,the surrogate mother is recognised as the mother in the legal sense,while the father in the legal sense is determined by the system of presumption of blood relationship and legitimate children.Proposes remedies for rights and interests in the determination of surrogate paternity,the uninformed party of the commissioning couple and the husband of the surrogate mother should enjoy the right to deny paternity in certain circumstances,protect the visitation rights of the surrogate mother and maintain the stability of the paternity of the surrogate child.