Analysis Of Luo,Xie V.Chen Dispute Case Over Guardianship

With the emergence of artificial assisted reproductive technology,the traditional family law on the determination of parent-child relationship and the custody of the ownership of the rules are challenged.However,the illegality of surrogacy does not affect the determination of parent-child relationship and guardianship in civil law.In the sample case,the two children were born through illegal surrogacy.The plaintiffs are the grandparents of the two children.The defendant is the adoptive mother of the two children.After the death of the two children's father,the plantiffs sued the defendant for guardianship on the grounds of not having blood relationship.The main issue in this case is whether the defendant can form a foster blood relationship in the absence of natural blood relationship between the two children and the defendant,that is,whether the defendant can form a foster parent-child relationship or a custody-dependent step-parent relationship with two children.China's civil law on the parent-child relationship follows the "childbirth as the mother" principle.The defendant is not a childbirth mother,so she can not be identified as the two children's biological mother.The two children belong to the illegitimate child of the spouse after the conclusion of the marriage.Two children have been living together with the defendant for five years,the defendant fulfilled as a mother of the child's upbringing,protection,education,care and other obligations,it should be identified as having formed a custody relationship between step-parent relationship.In addition,according to the principle of maximizing the interests of minors,living with the defendant is better for the two children.Therefore,the defendant shall obtain the guardianship of the two children.