| With the development of Assisted reproductive technology and the increasing incidence of infertility in China,the demand for surrogacy has been increasing,prompting the underground black industrial chain of commercial surrogacy to spread in China,according to the Legal Daily,there are more than 400 surrogacy agencies in China.Commercial surrogacy has broken the traditional natural birth pattern,and brought a series of problems,but at present,our country only has the department regulation to regulate the commercial surrogacy,obviously the attack strength is limited.Facing the expansion of the main body of commercial surrogacy and the development of surrogacy agencies,commercial surrogacy has increasingly eroded the state’s social management order.By analyzing the cases of commercial surrogacy,this paper finds out the legal problems existing in the act of commercial surrogacy at present,discusses the possibility and necessity of criminal punishment of commercial surrogacy,and puts forward some legislative suggestions according to the present situation of domestic and foreign legislation,in order to deal with the conflict between moral and law,to maintain the bottom line of the national medical management order.This article is about 35,000 words,in addition to the introduction,is divided into four parts:The first part introduces the concept and types of commercial surrogacy.First of all,there is no definite concept of surrogacy in our country.Through combing different scholars’ points,the meaning of surrogacy is clarified in combination with practice.Secondly,surrogacy is divided into commercial surrogacy and non-commercial surrogacy according to whether the principal pays the fees to the surrogacy mother or the agency.Then,according to the division of Labor of different subjects in commercial surrogacy,it innovatively divides commercial surrogacy into unorganized commercial surrogacy,organized commercial surrogacy and assisted commercial surrogacy,which lays a foundation for the punishment of commercial surrogacy.The second part discusses the legal problems of commercial surrogacy.Commercial surrogacy itself will violate the personal rights of the surrogate mother,impact the medical and health supervision order,destroy social ethics,subsequent lead to abandonment,abuse and other crimes.At the same time,due to the lack of regulation of commercial surrogacy in the current criminal law,there are problems in judicial practice,such as different judgments of the same case,and the crime committed by some subjects cannot be effectively punished,the lack of binding force for commercial surrogacy needs the improvement of the law.The third part is to the foreign commercial surrogacy behavior criminal law regulation carding,through to the partial country(region) legislation and the judicial practice carries on the research analysis,it is found that there are three different attitudes towards surrogacy in different countries(regions): the first type is countries that completely ban surrogacy,represented by France and Germany;Third is the area of the country that allows commercial surrogacy,represented by the State of California.In addition,Hong Kong’s legislation makes a distinction between non-commercial surrogacy and commercial surrogacy,and imposes severe criminal penalties on commercial surrogacy.From a worldwide perspective,it is a general trend that commercial surrogacy should be brought into the criminal law.Combining with the situation of our country and referring to the legislation on commercial surrogacy in Germany and France,the crime of commercial surrogacy is added to the criminal law,bear the corresponding criminal responsibility according to law.The fourth part is the core part of this paper,the commercial surrogacy into the proposed penalty.The discussion on the criminalization of commercial surrogacy continues to heat up in the law circle,and the acction of commercial surrogacy is still controversial,regarding the boundary between crime and non-crime,it is not an offence to commit such acts as entrustment by a principal,surrogacy by a surrogate mother,the publication of commercial surrogacy advertisements,and the sale and purchase of sperm and eggs.In terms of charge setting,the author collates and analyzes the views of scholars and puts forward that the crime of commercial surrogacy should be included under the crime of endangering public health in Section5 of the sixth chapter of the Criminal Law,innovatively proposed to add the crime of organizing commercial surrogacy and the crime of assisting commercial surrogacy,and through the reference of our country’s legislation,combined with the principle of minor crime legislation,proposed sentencing proposals,the development of life science and technology should not be hindered while protecting legal interests. |
