On The Effectiveness Of Surrogate Contract

Europe and the United States have been surrogate children in the early 1970 s, with the rapid development of economy, the natural environment for economic development paid a terrible price,and as the deterioration of the natural ecological human health also paid a terrible price, infertility has become a kind of disease. According to the survey, in the 80 s, the number of patients with infertility in the world is 80 millions to 110 millions, with the passage of time by 2014, China’s People’s Daily online survey data shows that domestic average incidence of infertility is 12.5%- 15%, namely it has a pair of infertility patients of every 8 couples.In social environment of the high incidence of infertility groups, surrogate children seems to have become the norm, but the creation of a new social phenomenon challenge the traditional family ethic, a variety of disputes about for a surrogate child custody, guardianship frequently seen in court. And the judge in the face of such cases, only 2001 of the ministry of health issued the measures for the management of the human assisted reproductive technology may follow, but the measures just have a clear ban on medical institutions and medical personnel to any form of surrogacy technology, without any guidance or restrictions for ordinary citizens, so the surrogacy shows a booming trend in the cracks of half bright and half dark instead of puts because of the ban of the ministry of health, such situations surrogacy causes even more legal problems and social problems. The reasons mainly have: one, the regulation effectiveness is too low, only from the level of rules and regulations, the legal level is still a vacuum; Second, at present China’s women of infertility is a increasing trend, under the traditional ideas(continuation of blood, whole family), and the pursuit of happiness life, still desperate. The judge in the face of such cases will be discretion due to the lack of legal, may eventually appearing display fair judgments. The lack of surrogacy laws, combined with the forbidden attitude of the administrative department, cause a lot of damage to women’s rights, and infringe upon the interests of the child. The surrogacy does exist "side effects", but its positive role is obvious: to improve a happy family, to promote social harmony, to make the development of science and technology, etc. As a result, hedge the risks of surrogate implementation and mining the social value of it become the priority in the face of a surrogate contract.This paper mainly has four parts:The first part, through the introduction of two typical surrogate cases, clear the difference between typical surrogacy and "borrow abdomen children", analysis of the court’s decision to clarify two controversial focuses:(1) the foundation of the legitimacy of surrogate contract,(2) the cognizance of the parent-child relationship under surrogate contract. The second part, put "legitimacy" theory as the breakthrough point, seek two paths of the legitimacy of surrogate contract, namely the rights basis of law and the moral foundation of ethics level, to seek the theoretical support for the legitimacy of surrogate contract; But the demand of the society is a real reason for surrogacy, combined with the development of science and technology providing a convenient condition to meet the physical and psychological needs, so the legitimacy of surrogate contract has another layer of social reasons; However, the legitimacy is not without limit to develop freely, but has its own boundary constraints, namely surrogacy is only as a treatment, and prohibit commercial surrogacy. The third part, the cognizance of the parent-child relationship is unable to avoid for surrogacy, here sum up four kinds of theories: birth, blood, contracts and children’s best interests, all countries, regions in the parent-child relationships just take one or two theories, but children’s best interests under the comprehensive comparative calculations is the consensus of the world. In addition to this, this paper argues that the surrogate purpose of the parties and public power intervention should be also considerations. The fourth part, to summarize the above and to propose surrogate contract legislation should follow the basic principles in our country, and to give some specific suggestions for surrogate contract legislation under the basic principles.