Study On The Rules Of Parent-child Relationship Identification Of Surrogate Pregnancy

Surrogation has broken the traditional concept and order of childbearing,not only meeting the needs of special groups such as infertile couples,widowed families,and samesex couples to raise children,but also impacting China’s traditional family concept,ethical order,and parent-child relationships based on kinship.Although China as a whole denies the legitimacy of surrogacy,with the development of reproductive technology and the rise in reproductive demand,surrogacy behavior has been repeatedly prohibited,resulting in many disputes,especially the identification of surrogate parent-child relationship.Currently,China has enacted laws on artificial reproductive technology,but they do not involve how to determine the parents of surrogate children,leading to disputes over parental rights of surrogate children that cannot be relied on.Therefore,China should establish specific rules for the identification of surrogate parentage based on existing norms,effectively protect the dignity and rights of surrogate children,and maintain the ethical and legal order of our country.Through the statistics and analysis of typical cases of surrogate parent-child disputes in recent years,it can be seen that the lack of legislation in China has brought challenges to judicial practice everywhere.At present,there are the following problems in the identification of surrogate parent-child relationship in China: First,there is a lack of unified standards and judicial identification is inconsistent.The traditional criteria for determining the parent-child relationship are ineffective in the field of surrogacy,and there is no consensus on how to determine the parent-child relationship in judicial practice,leading to the phenomenon of different judgments in the same case from time to time;The second is that it is unreasonable to identify parent-child relationships without distinguishing between types of surrogacy.Due to the different types of complete surrogacy and partial surrogacy,there should be a distinction between the confirmation methods of parent-child relationships,and it is not appropriate to solve all types of surrogacy problems with a single parent-child relationship identification model;Third,there is an imbalance in the protection of the interests of entrusted parents and surrogate mothers.It has become a consensus in judicial practice to consider the interests of children in the determination of surrogate parent-child relationships.However,there is still no consensus on the understanding of the interests of children,nor is there a reasonable balance between the interests of all parties involved in surrogate pregnancy.On the basis of reviewing the identification rules of surrogate parent-child relationship in foreign countries,drawing on their beneficial experiences in typifying dispute resolution mechanisms,pursuing the best interests of the child,and surrogate mothers enjoying the right to revoke,combined with China’s judicial practice,the following suggestions for improvement are proposed:To begin with,clarify the criteria for the identification of surrogate parent-child relationship.Taking the maximization of children’s interests as the unified standard for identification,and comprehensively considering objective factors such as parenting willingness,parenting ability,and blood relationship,to achieve the predictable maximum interests of children.Second,distinguish between types of surrogacy and identify parent-child relationships.Specifically,in the case of complete surrogacy,the intended couple is recognized as legitimate parents;In the case of partial surrogacy,the principle of "the person giving birth is the mother" is preferred;In the case of internal conflict between the surrogate party,the parent-child relationship is determined based on "factual upbringing";In the case of negative conflicts between the surrogate parties,the responsibility for raising children is entrusted to society,which is put into the adoption system and the child welfare system.Third,balance the interests of entrusted parents and surrogate mothers.This includes clarifying the limited visitation rights of non caregivers in a surrogate relationship,forcibly identifying the parenthood of the surrogate child when necessary,and affirming the priority adoption rights of the surrogate mother in the event of divorce or death of the entrusted parent.