Introduction

In modern society, the development of surrogacy technology has created a way other than adoption for infertile parents to obtain their own children, but on the other hand, such development contributes to obstacles in legislative regulation and judicial practice. Based on the diversity in culture, society and religions, countries around the world have different perspectives in policies, legislation and judicial approaches in relation to surrogacy.

In China, the legislation on surrogacy is still in a state of absence. In 2001, Article 3 of Administrative Measures for Human Assisted Reproductive Technology (《人类辅助生殖技术管理办法》) only prohibited medical institutions and medical personnel from carrying out surrogacy technology. In 2015, Article 35 of Amendment of the Population and Family Planning Law(Draft) (《人口与计划生育法修正案(草案)》) tried to prohibit surrogacy at the legislative level, but it ended up being deleted from the official text because of a sharp division. Although the legality of surrogacy contract is still controversial, due to the objective existence of surrogacy in social reality, the identification of parent-child relationship in the context of surrogacy is an inevitable practical problem needs to be settled.

In judicial practice, local courts often hold different opinions on the issues about public policy, best interests of children, personal rights of intentional parents and surrogate mother, and therefore lead to different conclusions. Thus, how to provide a relatively foreseeable system for the identification of parent-child relationship under the problem of surrogacy, and at the same time protect the interests of the parties, especially for the children involved in the cases has become an urgent problem to be solved.

Based on the judicial judgment of Shanghai First Intermediate Court in 2015 and several latest judicial judgments of courts in China after that typical case, the article tries to analyze the possible influencing factors considered in different decisions and looks forward for future progress.