代孕生育亲子身份关系司法认定的规则完善

Improvement of Regulation for Judicial Decision of Parentage in Surrogacy

我国立法禁止代孕,但事实层面屡现因代孕协议纠纷诉至法院请求确认亲子身份及解决由此带来的子女抚养问题。从生效判决看,代孕生育亲子身份认定依据在“血缘”和“分娩”因素之间摇摆不定,未形成体系逻辑性强且符合我国国情司法裁判规则。各地出现的由代孕引发亲子关系认定纠纷司法判决不一,既破坏《民法典》构建的家事法律制度的权威体系性,也危害我国传统家庭伦理秩序。亲子关系与一国家庭伦理传统文化紧密相连,代孕亲子关系认定的法律适用应基于本国法律文化语境。司法实践中代孕生育亲子身份关系认定规则亟待规范,应考察现有判决所呈现的身份关系认定的矛盾突出点,对纠纷进行梳理和类型分析,在我国家庭语境下依照《民法典》及相关立法的家庭价值为原则,以保障子女最大利益为导向综合考量四种类型代孕生育中委托方、孕母、捐精/卵者的亲职意愿、亲职能力、血缘基因、身体联结等认定因素,完善裁判规则。

Chinese law prohibits surrogacy,but in reality the disputes and conflicts over parentage and custody caused by the so-called surrogacy agreement have been sued to courts.From the judicial judgments,the basis for determining parentage in surrogacy is selected between the factors of“blood”and“childbirth”.A logic and systemic judicial rule in line with China's traditional culture has not been formed yet.The judicial decisions on disputes over the determination of parentage in surrogacy are inconsistent in various places,which not only infringes the authority of the family legal system constructed by the Civil Code,but also endangers the traditional family ethical orders.The parent-child relationship is in the family environment and is closely related to the traditional culture of a country's family ethics.The legal application of the decisions of parentage in surrogacy should be based on the legal and cultural context of the country.In judicial practice,the decisions on the parent-child identity of surrogacy needs to be reformed by examining the contradictions and key points of identifying the parent-child relationships,classifying the disputes,and analyzing their types in accordance with the family values in order to pursue the functions embodied in the Civil Code and relevant legislation.With the focus on the protection of children's best interests,it is essential to comprehensively consider the parenting intention,parenting ability,biological genes,physical connection and other identifying factors of the entrusting party,the pregnant mother,and the sperm/egg donor in the four types of surrogacy,thus improving the judicial rules.