Viewpoint | Discussion on the legal issues of surrogacy
Published:
2021-01-20
Recently, a star has become a hot spot of social concern due to the issue of surrogacy. my country's "Human Assisted Reproductive Technology Management Measures" clearly prohibits the sale of gametes, zygotes, and embryos in any form. Medical institutions and medical personnel are not allowed to implement any form of surrogacy technology. Therefore, in order to circumvent domestic laws and regulations, some people go abroad to carry out surrogacy and have children. The purpose of this paper is to discuss the legal risk of surrogacy, the validity of surrogacy contract and the identification of surrogacy parent-child relationship.
Connotation of 1. surrogacy
The original intention of assisted reproductive technology is to solve the fertility problem of couples, so that infertile couples can get pregnant, including artificial insemination and in vitro fertilization-embryo transfer and its derivative technology. When the mother of in vitro fertilization-embryo transfer is not a donor mother, it is a surrogate in the context.
2. reasons for banning surrogacy in our country
Surrogacy can cause serious ethical problems. In the famous case of "private customized twins" in Shanghai, a couple adopted the method of partial surrogacy. The husband provided the sperm and the third party provided the eggs. They gave birth to a pair of twins through the underground surrogacy agency. However, when the custody dispute went to the court, people found that the "twins" had three mothers, one of which was a surrogate mother, that is, the traditional Chinese ethical and moral mother; one is the mother who provides the egg, that is, the biological mother; one is the mother who has produced the fact that the relationship is raised. As far as the case of "privately ordered twins" is concerned, the husband who provided sperm has died, and grandparents and his wife compete for custody of the "twins". The wife is neither the ethical mother nor the biological mother of the "twins". In the first instance, the custody was awarded to the grandparents. In the second instance, the court re-awarded the custody to the wife by analogy with the stepchild and stepmother. From the perspective of traditional Chinese judicial practice, without considering other factors, it is usually recognized that the mother in traditional Chinese ethics is the mother in the legal sense of "dragon and phoenix. If the ethical mother appears in the process of litigation, it is very likely that the custody right will be awarded to the latter. At this time, the tens of millions of property inherited by the "dragon and phoenix fetus" after the husband's death will all be managed by the latter. It can be seen that surrogacy will not only cause serious ethical problems, challenge China's traditional moral values, but also get no legal protection.
Not all children born by surrogacy are healthy. The process of embryonic development is unpredictable. If the children born have defects or do not meet the expectations of biological parents, they will be abandoned in most cases. Abandoned children are either raised by poor surrogate mothers or disposed of, and only a few can be adopted by well-meaning people. The entire surrogacy process has a risk that cannot be ignored for both parties.
Surrogacy violates the principle of public order and good customs in the Civil Code, which includes not only social public order, but also the moral standards generally recognized and followed by all members of society. For surrogacy behavior and surrogacy contracts, we should focus on the provisions of this clause. Whether it is the traditional ethics of today's society or the prevailing customs, surrogacy behavior and surrogacy contracts are not recognized. The court found that it is invalid. More importantly, different from other contracts, the conclusion of the surrogacy contract does not conform to the principle of fairness and voluntariness. On the surface, the surrogacy contract reflects the true intention of both parties to the agreement, but the two parties to the surrogacy contract are often not equal. If the validity of the surrogacy contract is recognized, it means that the surrogate mother must perform the surrogacy obligation according to the contract, which is essentially the exploitation of the strong and does not conform to the socialist core values, therefore, our country explicitly prohibits the implementation of surrogacy technology.
Legal disputes caused by 3. surrogacy
If the (I) "borrows a child from the belly", the surrogate mother shall have the custody of the child born by the surrogate in accordance with the law -- the dispute between Wang and Li.
[the gist of this case] the personal relationship cannot be transferred or changed. The parent-child relationship is determined from the birth of the baby and will not be changed due to the negotiation and agreement of the parties. If the child is born through the belly, even if the couple who provided the fertilized egg is related to the child by blood, the surrogate is the biological mother of the child and enjoys the custody of the child in accordance with the law.
[Case Analysis] First of all, "giving birth through the abdomen" refers to the use of someone else's uterus to implant the fertilized eggs of the couple and give birth to children who are related to themselves and their husbands. In our current law is expressly prohibited. Although there is no provision in criminal law, civil law and other laws, the measures for the administration of human assisted reproductive technology and the measures for the management of human sperm bank issued by the Ministry of health in 2001 clearly stipulate that the sale of gametes, zygotes and embryos in any form is prohibited. Medical institutions and medical personnel shall not implement any form of surrogacy technology.
Secondly, although it is prohibited by the law of our country to give birth to children through pregnancy, disputes over the custody of babies that have been born through surrogacy should still be dealt. For normal conception and birth of the baby, the mother-child relationship is very clear, that is, the birth of the baby for the baby's mother. And for babies born from the belly, who is the baby's mother, there is controversy. Some people believe that the woman who provides the fertilized egg should be the mother of the child. Such supporters believe that the baby born in this way has a blood relationship with the couple who provides the fertilized egg, and there is a certain heredity. The author believes that the person who gave birth should be identified as the biological mother of the baby, because the baby from the embryo to the final smooth birth, providing nutrition and a hotbed for its growth, pregnancy in October, its hardships and efforts far beyond the provider of sperm and eggs.
Third, the surrogacy contract signed by both parties violates the law and should be invalid. Article 52 of the former Contract Law (now Article 153 of the Civil Code) stipulates that contracts that violate the mandatory provisions of laws and administrative regulations are invalid. In addition, the personal relationship cannot be transferred or changed. The parent-child relationship is determined from the birth of the baby and will not be changed due to the negotiation and agreement of the parties. In this case, Li gave birth to a baby boy in October, and as a mother, he enjoys the right to custody of the child in accordance with the law.
Source: Jiangxi Court Network
(II) "surrogate contract" is invalid because of violation of public order and good customs -- Xiaoling v. Zhang's custody dispute
[the gist of this case] surrogacy contract is to use the surrogate's uterus as a "thing" to rent out and use the child as the object of commodity transactions. The contract violates public order and good customs, social morality, and violates the basic principles of contract law, and should be an invalid contract.
[Case Analysis] In this case, since Zhang has always "insisted" that there is a surrogacy agreement between himself and Xiaoling, the child should be raised by himself. In this regard, Yu Weiqiang, a judge of the first people's Court of Siming District, said that from the facts of the case, only from the evidence submitted by Zhang, it is impossible to make a clear determination that it is a surrogacy contract; even if the two sides sign a surrogacy contract in reality, it still does not have legal effect. A surrogate contract is a paid contract in which the surrogate party and the pregnant party agree on the rights and obligations of both parties in the surrogate. At present, my country's law does not clearly stipulate surrogacy contracts, but the Ministry of Health promulgated and implemented the "Administrative Measures for Human Assisted Reproductive Technology" in 2001, prohibiting the implementation of surrogacy technology, and only allowing the use of human assisted reproductive technology for pregnancy through the wife's uterus. From the essence of the surrogate contract, the surrogate's uterus is rented out as a "thing" and the child is the object of commodity trading. The above two aspects reflect that the surrogacy contract violates public order and good customs and social morality, and violates the basic principles of contract law, which should be invalid. Based on the impact of surrogacy on traditional ethics and many hidden legal, social and other issues, especially commercial surrogacy, which is a surrogate for the direct purpose of money, should be strictly restricted.
Source: Legal Daily
4. Summary
To sum up, surrogacy behavior will cause serious ethical problems. At the same time, it will not only bring mental pain to people, but also may have inheritance disputes. It seems that there are restrictions on the surrogacy contract, and the rights and obligations of both parties are not guaranteed by law. In order to circumvent domestic laws to go abroad for surrogacy, disputes such as "return" will still occur. Even if there is a surrogacy contract between the two parties, when disputes are involved, it is more likely that the contract will be deemed invalid due to violation of the mandatory provisions of laws and regulations or the principle of public order and good customs. The personal relationship cannot be transferred or changed, and the parent-child relationship is determined from the birth of the baby and is not changed by the negotiation and agreement of the parties.
Relevant laws and regulations
Article 8 of the Civil Code: "Civil subjects engaged in civil activities shall not violate the law or public order and good customs".
Article 153 of the Civil Code: "A civil juristic act that violates a mandatory provision of a law or regulation is null and void. However, the mandatory provision does not render the civil juristic act null and void. A civil juristic act that violates public order and good customs is null and void".
Article 3 of the Measures for the Administration of Human Assisted Reproductive Technology: "The application of human assisted reproductive technology shall be carried out in medical institutions, for medical purposes, and in accordance with the national family planning policy, ethical principles and relevant legal provisions. It is prohibited to buy or sell gametes, zygotes and embryos in any form. Medical institutions and medical personnel shall not implement any form of surrogacy technology."
Article 22 of the Measures for the Administration of Human Assisted Reproductive Technology: "If a medical institution that carries out human assisted reproductive technology violates these Measures and commits one of the following acts, the health administrative department of the people's government of the province, autonomous region or municipality directly under the Central Government shall give a warning, a fine of less than 30000 yuan, and give administrative sanctions to the responsible person; if a crime is constituted, criminal responsibility shall be investigated according to law:
(I) buying and selling gametes, zygotes, embryos;
(II) the implementation of surrogacy technology;
(III) using sperm provided by institutions that do not have the Human Sperm Bank Approval Certificate;
(IV) sex selection without authorization;
(V) the implementation of human assisted reproductive technology file is not sound;
(VI) the technical quality is unqualified after inspection by the designated technical evaluation agency;
(VII) other violations of the provisions of these measures."
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