Research On The Identification Of Surrogate Parent-child Relationshi

Surrogacy is a fertility method developed with modern medical technology.Because of its special welfare function,it is favored in today ’s underground market.China’s " Civil Code" does not make direct provisions on the legality of surrogacy.In 2015,the ’Amendment(Draft)to the Family Planning Law of the People ’s Republic of China ’,which was considered and adopted by the executive meeting of the State Council,proposed that ’ surrogacy is prohibited in any form.However,the academic community and many members cannot reach an agreement on the issue of "whether surrogacy needs to be completely banned." Finally,the Standing Committee of the National People ’s Congress considered that the surrogacy issue needed further study and discussion,and deleted the " prohibition of surrogacy " clause.Only in 2001,the Ministry of Health promulgated the " human reproductive technology management approach " in Article 3:’ medical institutions and medical personnel shall not implement any form of surrogacy technology.The legal level of the department’s regulations is low,only for special subjects such as medical institutions and medical personnel under its management,and the punishment is small.Thanks to the lack of legislation,the relaxation of supervision and the massive demand,the underground surrogacy market in the gray area has developed rapidly.To a certain extent,this meets the needs of infertile groups to achieve childbearing and family integrity.However,surrogacy has artificially changed the relationship between natural reproductive sex and fertility,childbirth and kinship,and has impacted the existing legal system,ethics,marriage and family.In particular,it is difficult to identify the parent-child relationship as the core of surrogacy.The ’Civil Code ’ does not make special provisions on the determination of surrogate parent-child relationship.There is no consensus on the criteria for the identification of surrogate parent-child relationship in the theoretical circle and judicial practice,which directly leads to two consequences:First,the rights and obligations between surrogate clients,surrogate mothers,and embryo donors are unclear,and surrogate children cannot form effective expectations in the identity relationship.Second,the court in the determination of surrogacy parent-child relationship cannot be based on,the same case of different standards of judicial dilemma.In view of this,the article first starts from the clarification of the concept,and systematically studies the problems shown by the comparison between the surrogacy parent-child relationship and the existing parent-child relationship:the expansion of the subject of the parent-child relationship dispute,the inability to apply the blood relationship identification,the difficulty in meeting the conditions of the fictitious blood relatives,the rise of the mother ’s identification dispute,and the identification of the surrogacy parent-child relationship are often closely related to guardianship,visitation rights,and inheritance rights.In order to better deal with the identification of surrogacy parent-child relationship,it is necessary to investigate and analyze the judicial practice of surrogacy parent-child relationship,so as to summarize the reasons for the difficulty in identifying surrogacy parent-child relationship.The specific manifestations are as follows:taking the legitimacy and effectiveness of basic behavior as the premise of the identification of surrogacy parent-child relationship,the anomie of surrogacy market supervision,the difficulty of proof,and the theoretical research on the identification standard of surrogacy parent-child relationship are still controversial.Affected by the above factors,China ’s existing laws are difficult to deal with the complex types of surrogacy parent-child relationship,and it is more difficult to break through the current judicial dilemma.This will lead to the following negative effects:First,in terms of rights protection,surrogate children cannot obtain a sustained and stable growth environment,and their basic rights and interests for survival and development cannot be guaranteed.At the level of theoretical research,the academic community still has persistent disputes on the legality of surrogacy,the effectiveness of surrogacy agreements,and the identification criteria of surrogacy parent-child relationships,which makes it difficult to form a unified and authoritative conclusion and deepens legislative difficulties.Third,in terms of judicial adjudication,higher requirements are placed on the legal literacy of the judges’ discretion,which is also easy to cause judicial public opinion and undermine judicial dignity.This paper argues that when the biological and genetic standards are not defined or difficult to choose,the principle of the best interests of the child is used to determine the surrogate parent-child relationship.In view of the legislative,judicial and theoretical deficiencies in the identification of surrogate parent-child relationship,this paper analyzes and puts forward opinions one by one.Protect the nuclear family and limit commercial surrogacy in the identification of surrogacy parent-child relationship;consider reasonable factors for different situations to establish reasonable rules,promote the improvement of relevant laws and regulations,and guide the needs of judicial practice.