Research On Public Order Issues In Recognition And Implementation Of Cross-Border Surrogacy Paternity Identification

The emergence of artificial reproductive assistance technology makes it a reality to "give birth by borrowing the womb",resulting in a wave of surrogacy,among which cross-border surrogacy has become a hot topic.Cross-border surrogacy has gradually become a large and specialized industry,and different countries hold different attitudes towards surrogacy,so the problems are more complex,among which the core is how to apply public order in the recognition and execution of cross-border surrogacy extraterritorial paternity judgment.The scope of this study is limited to the background of opposite-sex surrogate couples in which at least one partner contributes genes to other egg surrogacy.First,in recent years,cross-border surrogacy has attracted extensive attention from the international and domestic society,which involves many issues such as jurisdiction,legal choice and paternity determination.Due to the limited space of this paper,only the recognition of paternity determination judgment is selected for research.Second,the "judgment" discussed in this paper can be interpreted in a broad sense,which refers to both the birth certificate issued by the administrative organ and the cognizant judgment made by the court.Thirdly,due to the variety and complexity of the gametes combination in surrogacy,most cases in judicial practice are those in which the entrusting parents desire to have their own children and go to countries where surrogacy is legal to seek the surrogate mother under the background that at least one of them has genetic connection with the surrogate child.The scope of this article is limited here.In cross-border surrogacy,the entrusted parents want to take the child back to their home country for settlement after the completion of cross-border surrogacy,but a key problem is whether the receiving country can recognize the judgment of paternity outside the country,which will directly affect the healthy growth of cross-border surrogate children.This paper includes four parts.The first part discusses the basic public policy issues related to the recognition and enforcement of foreign transnational surrogate parent-child relationship judgments.The public order in cross-border surrogacy mainly involves ethics,human rights interests,basic policies,legal rules and so on.The public order in different countries has different connotations.If the court of the receiving country refuses to recognize it,it will lead to lame-paternity relationship.The interests of children cannot be guaranteed.The second part mainly introduces the parent-child relationship confirmation rules in the public order of cross-border surrogacy.Different countries have different public order regulations on surrogacy and adopt different surrogacy policies,which reflect the different rules of paternity confirmation in legislation.In this part,the confirmation rules of parent-child relationship in some representative countries under different positions are analyzed.For example,Japan and France often follow the traditional principle of childbirth as the mother in the identification of paternity relationship due to the position of total prohibition of surrogacy.However,in countries open to surrogacy,entrusted parents are legal parents because they recognize the validity of the surrogacy agreement.The third part explores how countries recognize and enforce cross-border surrogacy paternity judgment from the judicial practice of various countries.Countries that ban surrogacy usually refuse to recognize and implement it on the basis of the principle of public order reservation.However,there is also a trend of limited recognition internationally.If one of the entrusted parents has a genetic relationship with the surrogate child,in order to protect the child to the greatest extent,in this case,the paternity recognition judgment of the court outside the country can be recognized and executed.In essence,how to strike a balance between the principle of the best interests of children and the principle of public policy is the fundamental problem to be solved.The public order involving surrogate children needs to be reasonably explained;on the other hand,the principle of the best interests of children needs to be flexibly applied in practice.The fourth part,based on the actual situation of China,in view of the current situation of applying public order in the field of paternity identification of surrogacy in China,puts forward the conception of adjusting the relevant legal norms of public order in China’s surrogacy.First,"blocking" is not as good as "sparse".Since total prohibition of surrogacy cannot solve the growing problem of underground surrogacy,the attitude of total prohibition should be changed.Second,we should further improve the identification rules of parent-child relationship of surrogate children and explore the possibility of adopting the identification principles of intention and functional parents.Third,China should actively participate in the formulation of international conventions on surrogate parenthood.Finally,from the perspective of our country,the author suggests that we should distinguish the illegality of surrogacy from the identification of surrogate parenthood,limit the application of public order reservation,and give priority to the principle of applying the best interests of children in the recognition and implementation.