The surrogacy transaction that wanders on the edge of the law violates the public order and good customs of the society, and is a flagrant trample on the dignity of the "born as a human"
□ Wu Ye
Some couples are unable to have children due to physiological reasons, and some people are unwilling to have children because their careers are blocked. For this reason, some choose to go overseas for surrogacy, and some use illegal methods to carry out surrogacy in China to maintain their blood.
Recently, the news of "surrogacy and abandonment of surrogacy" by a female celebrity appeared on the hot search, and the whole society began to pay attention to surrogacy again, and the hidden legal issues of surrogacy resurfaced.
The legal circles urgently need to re-examine the calls for relaxation of surrogacy advocated in recent years, and all sectors of society also need to pay close attention to a series of ethical, social, and health issues caused by surrogacy.
Surrogacy refers to the behavior of women with fertility using human assisted reproductive technology to conceive and give birth for others.
The current surrogacy mostly refers to paid surrogacy, that is, the client arranges surrogacy through illegal intermediary agencies.
Surrogacy is usually carried out by professionals such as hospitals or doctors, and the client has to pay high fees to the surrogate, doctors, and intermediary agencies.
At present, the illegal cost of surrogacy transactions is too low, which is the direct cause of the prosperity of the gray industry chain, and what is behind it is an indifferent attitude towards life.
The surrogacy transaction not only brings many uncertain risks to the surrogate child, but also infringes the surrogate’s right to body and health.
In reality, some rural women have undergone many abortions due to surrogacy, resulting in life-long infertility and even death.
Those who are unable to have children also enjoy the right to reproductive rights in law, but whether it is based on value pursuit or legal benefit, the protection of the rights of surrogate children should be higher than the reproductive rights of surrogate people.
In the surrogacy transaction, if a "boy-born" surrogate becomes pregnant with a girl, the pregnancy may be forcibly terminated; when the baby has a physical defect, it may be discarded.
Legal circles should not only pay attention to the fertility demands of the surrogate client, but also pay attention to various legal issues and social risks caused by surrogacy abandonment, pregnancy termination, and illegal transactions.
Babies are an absolutely disadvantaged group. They cannot appeal to their own rights, nor can they protect themselves. They can only rely entirely on their parents or guardians.
In fact, illegal surrogacy and subsequent abandonment is by no means a small probability event, this practice is also suspected of constituting abandonment crime.
As for the legal effect of surrogacy, the theoretical and practical circles have different opinions and opinions.
Some people believe that if the validity of the surrogacy contract is not recognized, it may bring unexpected risks to both parties.
However, surrogates are not tools, and children are not commodities.
Both parties voluntarily reach an agreement on surrogacy, which does not mean that the surrogacy contract is of course valid.
Illegal surrogacy agencies refer to abandonment and termination of pregnancy as "returning goods." In their eyes, the child has become an reserved commodity, which is a serious violation of Article 8, Article 143 and Article 153 of the Civil Code concerning public order and good customs. Provisions are acts that cannot be tolerated by law, and the validity of surrogacy contracts should not be recognized.
Therefore, regardless of the reason for the implementation of surrogacy, the legal risk of surrogacy is very high. If one party repents, even if the other party goes to court, it will be difficult to effectively protect rights.
When the birth of life becomes a transaction, when the child becomes a commodity, who is qualified to be the legal guardian of the surrogate child?
Article 1073 of the Civil Code of my country provides for the confirmation of parent-child relationship, “If there is an objection to the parent-child relationship and there are legitimate reasons, the father or mother may file a lawsuit in the people’s court to request confirmation or denial of the parent-child relationship”.
The clause does not define what is meant by parent-child relationship in the legal sense.
However, according to my country's traditional concepts and related practices, "birth" is the primary basis for judging the parent-child relationship, especially the mother-child relationship.
In surrogacy, although the child is born by the surrogate, there is no blood relationship with him.
How to confirm the parent-child relationship and legal guardian has become a thorny issue in judicial practice.
Under the background that there is no adequate legal protection for the children of surrogacy, if the surrogacy prohibition is eagerly released, it will cause undiminished adverse effects and irreparable social tragedies.
The problem of surrogacy is related to the reproductive rights of some people, and it is also related to the healthy growth of minors.
The surrogacy transaction that wanders around the edge of the law has completely violated the public order and good customs of the society and is a flagrant trample on the dignity of the "born as a human".
In this regard, legislators need to face up to surrogacy behavior, step up efforts to crack down on illegal surrogacy agencies, increase the cost of illegal surrogacy transactions, prudently deal with calls for the liberalization of surrogacy, attach great importance to the protection of the rights and interests of surrogate children, and do not allow women to become reproductive tools. Let children become illegally profitable commodities.
(The author is the deputy dean and associate professor of the Civil Code Research Institute of Lanzhou University)