Research On The Identification Of Parent-child Relationship In China Under The Background Of Substitution

Surrogacy has brought hope to infertile families,but it also breaks through the traditional way of determining parent-child relationships under natural childbirth,bringing considerable difficulty to legislation and justice.In China,the determination of parent-child relationship will affect the direction of a series of legal relationships such as guardianship,upbringing,and inheritance,and the parent-child relationship is relatively stable once established.Although the birth method of a child born through surrogacy is different from that of a child born naturally,it is not something that can be determined by oneself and there is no fault in itself.The use of surrogacy technology and the birth of surrogate children have become a fact.We should protect the interests of surrogate children,regulate the determination of surrogate parent-child relationships,and solve the contradictions in judicial practice regarding the determination of surrogate child relationships under the existing legal system.This article does not intend to discuss the legalization of surrogacy and the effectiveness of surrogacy agreements,but instead focuses on the issue of determining the parent-child relationship of surrogacy,mainly for two reasons.Firstly,to a certain extent,whether surrogacy is legal or not,and whether the surrogacy agreement is valid or not,it will not have an impact on the determination of surrogacy parent-child relationship.In practice,the rules for determining parent-child relationship are more urgent;Secondly,there is relatively little research on the rules for determining the parent-child relationship in surrogacy,and many of them have been overlooked.The first part starts with an overview of surrogacy in China.To solve the problem of determining the parent-child relationship of surrogacy,it is necessary to have a clear understanding of surrogacy related issues.Subsequently,it introduced the recognition rules of traditional parent-child relationships in China and the impact of surrogacy on the recognition rules of traditional parent-child relationships.The second part introduces four main theories in the theoretical field of surrogacy in China,namely the theory of childbirth genetics and contract,and the theory of maximizing the interests of children.Each theory has made contributions to solving the problem,but cannot adapt to various situations that arise in reality.Therefore,this section explains each of the four theories and analyzes their advantages and disadvantages.Based on the current situation in China,this article believes that a combination of contract theory should be adopted.The third part introduces the current status of determining the parent-child relationship of surrogacy in China,and analyzes and sorts out the existing problems from it.At the legislative level,due to the complexity of the legislative process and the ongoing discussions in the theoretical community on the legality of surrogacy,there is a lack of direct and clear regulations on the identity relationship of surrogate children in China’s current legislation.At the practical level,through the analysis of cases,it is found that in judicial practice,judges often homogenize the relationship between surrogacy agreements and surrogate children’s parent-child relationships,and have different understandings of the identification of surrogate children’s mother identity and the attribution of guardianship.The fourth part is a reflection on the rules for determining the parent-child relationship of surrogacy in China.Firstly,the principles that should be followed in determining the parent-child relationship of surrogacy were clarified,namely the principle of autonomy of will and the principle of the best interests of the child.Secondly,it discusses the specific identification rules of surrogate parent-child relationship,that is,instead of adopting the traditional identification rules of parent-child relationship,it refers to the judicial interpretation,and regards the children born by surrogate as the children of the client.Finally,it analyzes the identification of the custody of surrogate children.