A Study On Legal Issues Of Surrogate Parenthood

Mutual improvement of technology and law is the significant manifestation of this times’progress.Surrogacy,as a new Assisted Reproduction Technology（ART）,brings many social problems that the law has to face with in the process of conflicts between the technology and the law.This paper takes the perspective of surrogate parenthood with the research object of surrogacy.We comprehensively and systematically explain the rationality and legitimacy of surrogacy which lay a foundation for its legalization step by step,the legal problems that surrogacy brought and its countermeasures for its legal regulation by comparative,logical,and moral philosophy approach.Besides the introduction（1^stt chapter）and the conclusion（7^thh chapter）,the dissertation consists of 5 chapters（from 2ⁿdd to 6^thh chapter）.The 2^ndchapter expounds the basic theory of surrogacy,including its connotation,denotation and whether surrogacy should be legalized.Surrogacy,refers to an ART that a woman who pregnancies till childbirth for another woman via medical procedures of insemination or fertilized egg placing.There are varieties of surrogacy according to different taxonomies,such as full surrogacy and gestational surrogacy,commercial surrogacy and no-pay surrogacy.Thus,governments adopt three types of attitudes towards surrogacy by legal regulation,and they are admitting,forbidden,or limited admitting.If a government holds the attitude of limited admitting surrogacy,means they permitted a certain type of surrogacy and protected this legal relation,for example,the full surrogacy without paying,while other types are forbidden.Surrogacy legislation of western countries and Taiwan are more advanced,while Taiwan’s legal regulation appears more value for us due to the similar condition and tradition as ours in mainland of China.China adopts a ban against surrogate births by article 3 in“Management Measures of Human Auxiliary Reproduction Technology”.Anybody who obeys the rule,the medical establishment may be penalized,however,others who took part in the surrogacy operation would not have been punished,which displayed a legal loophole.Chinese government don’t take any measures to make up this legal disadvantage,which shows an adequate leeway for Chinese surrogacy forbidden.China has revised the Population and Family Planning Law of PRC in the year of 2016,and it removed the provision of surrogacy prohibition,which reveal the attitude change at present.Any ambiguous law or long-term administrative regulation would not be a good legal way for a country governing.As a result,the role of surrogacy in China would have been changed in a near future.The critical issue of this part is to demonstrates the surrogacy legalization.There are varieties of opinions,but they reach an agreement that if it is not against the Public Order and Good Custom（POGC）,surrogacy should not be denied by law.So the surrogacy legalization is a debate about whether it obeys the POGC.Regional and epochal character decides the alter ability of POGC,which makes people accept even praise a thing that they rejected at the beginning,and so is surrogacy at the beginning.As the conflict’s weaken of surrogacy and POGC,surrogacy becomes more and more acceptable.ART help the people who were not able to give birth to a blood related baby naturally,that is why more people would rather to choose surrogacy at a venture than adoption.It must be admitted that surrogacy plays a positive role in family stability even for equality of men and women.Chapter 3 to 4 analysis the regulation of parenthood of surrogacy in our country and abroad.A critical issue in this part is about the surrogacy agreement.The complying of law for surrogacy agreement also manifests its legalization.Surrogacy agreement is the main manifestation for its legislation.The execution of contract may simply represents as a equation:Forming+Lawful=Effective.Any agreement signed on fairly and equally without compulsory provisions violation,is valid,which complies the principle of autonomy of will.However,surrogacy contract is special for its close relation with human body,therefore,the conditions for surrogacy contracts subjects,such as the surrogacy mother,the intend father and mother,should be stricter.In this way,it is not appropriate to analogy surrogacy contract to Agency Appointment Contract or Trading-Trust Contract,but to set up a new type of named contract for surrogacy.This new contract type would have stipulated the condition for subject,liability for breach,compensation for damage,other formal requirements and so on.The aim for raising the requirement of surrogacy contract is to prevent the flush of it,that means to find a balance among woman’s body rights,birth giving freedom,baby better care,so the legislation would be effective.In short,surrogacy should be legalized.Besides,there are conflicts among Chinese regulations which should have be referee basis for surrogacy cases at the moment.Thus,a case is exampled for this discussion,which shows the dealing in the judge.Two opposite judge results were made by the two courts at different levels,which shows that no definite laws can be used for surrogacy regulation.There are four ways for surrogate parenthood in the world.The more mainstream view is on the basis of blood,childbirth,with supplement for children’s best interest principle,which is not as perfect as it looks.As a result,new discussions should be made.Thus,chapter 5 to 6 is about the legal suggestion to the issue of surrogate parenthood,which is the key matter and ultimate goal in a surrogate relation.A popular theory holds a point that parenthood should be on the basic of genetic connection,and“Best for Children”（BFC）as supplement if necessary.When a surrogacy baby has been born,the man and the woman who have genetic connection with it are its parents.If they both claim their parenthood,BFC would play a key role in this decision.If the client woman gets custody of the surrogacy baby,her spouse naturally becomes its legal father.This maybe a good way for surrogate baby’s custody,but the“father”is a man who get the status by marriage instead of genetic,which is not good for the baby’s growing up.Thus,it should be paid more attention to the child’s benefits.A new system is set up in this paper,and that is judicial pre-authorization.Before the baby’s born,the court determines the parenthood for the surrogate baby on the base of the intend couple’s appeal,by taking into the adequate consideration of the genetic connection and the BFC.Chapter 6 discusses law conflicts and the solution of international surrogacy.The intend couple should have been granted parents’rights and duties since the baby’s birth in order to reduce the hurt from the law action,and in this long-term war,surrogate baby would be the biggest victim.So countries are better to reach an agreement on international surrogacy problems,for example,the attitude to commercial surrogacy.They can strengthen international cooperation by previous admitting from surrogate mother’s country to acquire the nationality for the baby.Besides,multilateral agreement should be made by countries about the intermediary that manage all the surrogacy affairs.The intermediary is professional for examining the contract and the people to make sure the domestic rules of the intend couple,surrogate mother and the surrogate baby can be integrated to the international laws.Even though it is still disputable about the necessity of surrogacy intermediary,it may help people avoid falling into a wrong path in a surrogacy relation.The best way to solve the law conflicts is to reach an agreement about international surrogacy.There is a vulnerable group in society that can get most relief from surrogacy,and they are only-child-lost families.This type of families has suffered a hard hit of child death,but the more difficult journey is their future living hardship in psychological,economical,and other areas.Normal social welfare is far from enough for their easing their pain,and the only effective way to help them is a baby that belongs to themselves.As a result,surrogacy may be a best choice especially for the families who can not pregnancy naturally due to aging.Government would make support for them in policy and economy,which can lead to stability of family and even the society.Vulnerable families ought to get more protection from the country,and it is the particular rules by law that can help them get the protection in effect.This chapter also analyses the protection of vulnerable groups in the surrogate relation.The most vulnerable people are women and fetus in surrogacy.Firstly,it is about the women.Woman has the personal rights and property rights,as in a surrogacy relation,it is closer to the personal rights for a woman.No matter surrogate mother or the intend mother,the common goal is to own a baby,so the reproductive right is critical.Surrogacy is close to woman’s body,and the privacy right becomes important.The body rights are the basic for surrogacy which should be protected for surrogate women.Secondly,it is about the fetus.Fetus,is human being’s embryo living in uterus from fertilization to born.It is the result of a surrogate relation,which makes its rights to be specially protected,and they are healthy rights,succession rights,accepting gift rights,damage compensation requesting rights and litigation rights.Generally,the protection for fetus depends on who is their mother,while the surrogacy is special for its two mothers in different stages of pregnancy and raising.The baby’s legal guardian changes as the hurt comes at different time.If the baby is hurt when it is conceived and the harm is from the pregnant,the legal guardian is the intend mother,which applies the Burden of Proof by defendant.What surrogacy needs is not only the strict and good legislation,but also the understand and acceptance from the whole society.This paper puts forward some preliminary suggestions for the relative legislation in the conclusion,which shows it analyses the theory,and further more,pay attention to the legislative practice and studies in the future.