亲子法理念变迁下代孕子女监护权归属问题研究

A Study of the Custody of Surrogate Children under the Changing Values of Paternity Law

亲子法理念的变化趋势有家族和血缘观念淡化、意思自治理念受到重视,以及亲子法更加注重社会关系的稳定。代孕监护权确定应当要遵循"儿童利益最大化原则",而此原则不能单纯以血缘亲疏作为衡量利益大小的标准,而应当要从实证法中运用文意解释和类推适用的方法,综合多种客观因素来确定,并且还需要结合代孕各方意思综合考量。可以采用收养制度作为一般性的解决代孕监护权问题的手段。

The changing trend of the concept of parentage law includes the dilution of the concept of family and blood, the emphasis on the concept of meaningful autonomy, and the increased focus on the stability of social relations in parentage law. The determination of surrogate custody should be based on the "principle of maximizing the interests of the child", which should be based not only on blood relationship, by determining a combination of objective factors from the empirical method using contextual interpretation and analogous application, but also consider the interests of the surrogate parties. The adoption system can be used as a general means of resolving the issue of surrogate custody.