跨国代孕的国际私法问题研究

发布时间：2018-12-14 03:10

【摘要】：跨国代孕以一种非官方、半地下的形式在全球范围内日益流行,引起了各国政府、海牙国际私法会议、人权保护组织等的广泛关注。各国针对代孕相关问题存在法律冲突,加上缺乏统一的规范管制,跨国代孕协议的合法性、有效性和强制执行力不确定,跨国代孕所涉各方的权益保护问题尤其是代孕子女亲权归属不确定、法律地位不确定的问题日益突出。既有案例及数据表明,我国已处于跨国代孕潮流中。但我国大陆既有法律对代孕未有规定,而且对代孕也存在不适用的问题,再加上跨国代孕问题本身的复杂性使司法实务处理面临困境。跨国代孕相关问题亟待解决,本文将从解决国际私法问题的一般路径统一实体法路径和冲突规范路径分别进行探讨,并针对国际上争议较大的几个问题探讨公共秩序保留的具体适用问题。首先是统一实体法路径分析,对海牙国际私法会议开展的父母身份／代孕项目及欧盟议会组织专家组进行的统一实体法实践进行分析,结合《跨国收养方面保护儿童及合作公约》及《欧洲人权公约》在实务中的应用,得出现阶段跨国代孕相关问题仍需依靠冲突规范来处理的结论。其次,本文以跨国代孕协议兼具财产性与人身性的特殊性质为基础,采用“分割”理论就合同事项和亲权事项分别设计冲突规范。针对意愿父母与代理孕母在跨国代孕协议订立及履行过程中存在的地位差距,结合许多国家就代孕协议的效力和执行力分别立法的现状及国际私法注重实质正义的新趋势,得出弱势一方合法利益保护原则、“分割”理论及意思自治原则在跨国代孕合同事项中具有适用性的结论,并分析具体适用方案；针对“跛足”亲权对代孕子女基本权益的损害,结合已有国际条约、判例及各国相关冲突规范中体现的“保护儿童最佳利益”原则,通过增加新的连结点或者适用结合性连结点的方式确保最能保护儿童利益的准据法得到适用。最后,结合公共秩序保留制度的限制适用趋势、国际私法对实质公平的追求以及公共秩序本身的不确定性,从平衡国家利益与个人利益的角度,针对代理孕母的剥削和商品化问题探讨国际公共秩序的适用及公共秩序保留与国内公法的关系；为避免代孕子女及同性意愿父母受公共秩序保留制度滥用的影响,主要从侧重结果公正的“客观说”和儿童最佳利益保护分公共秩序保留制度的具体适用。
[Abstract]:Transnational surrogacy is becoming more and more popular in the world in an unofficial, semi-underground form, which has aroused the widespread concern of governments, the Hague Conference on Private International Law, human rights protection organizations and so on. Conflicts of laws exist in various countries on surrogacy related issues, coupled with the lack of uniform regulatory controls, and the uncertainty of the legality, effectiveness and enforcement of transnational surrogacy agreements. The protection of the rights and interests of the parties involved in transnational surrogacy, especially the uncertainty of the attribution of parental rights of surrogate children, and the uncertainty of legal status are becoming increasingly prominent. Existing cases and data show that China has been in the trend of transnational surrogacy. However, in mainland China, there is no stipulation on surrogacy in law, and there is also a problem that is not applicable to surrogacy. Moreover, the complexity of transnational surrogacy makes the judicial practice face difficulties. The problems related to transnational surrogacy need to be solved urgently. This paper will discuss the general path of uniform substantive law and conflict norm path to solve the problems of private international law. This paper also discusses the specific application of public order reservation in view of some controversial issues in the world. First of all, the path analysis of uniform substantive law, the analysis of the project of parenthood / surrogacy carried out by the Hague Conference on Private International Law and the practice of uniform substantive law carried out by the Group of experts of the European Parliament. Combined with the application of the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption and the European Convention on Human Rights in practice, it is concluded that the problems related to intercountry surrogacy still need to be dealt with by conflict norms. Secondly, based on the special property of both property and person in transnational surrogacy agreement, this paper uses the theory of "division" to design conflict rules for contract items and parental matters respectively. In view of the status gap between willing parents and surrogate mothers in the process of conclusion and implementation of transnational surrogacy agreements, combined with the current situation of legislation on the validity and enforcement of surrogacy agreements in many countries and the new trend of paying attention to substantive justice in private international law. It draws the conclusion that the principle of protecting the legal interests of the weak party, the theory of "division" and the principle of autonomy of will have applicability in the transnational surrogacy contract, and analyzes the concrete application scheme; In view of the damage to the basic rights and interests of surrogate children caused by the parental right of "lameness", the principle of "protecting the best interests of the child" is embodied in the existing international treaties, jurisprudence and relevant conflict norms of various countries. Ensure that the applicable law that best protects the interests of the child is applied by adding new or applicable associative points. Finally, according to the trend of restriction and application of the reservation system of public order, the pursuit of substantive fairness in private international law and the uncertainty of public order itself, from the angle of balancing national and individual interests, Aiming at the exploitation and commercialization of surrogate mothers, this paper discusses the application of international public order and the relationship between the reservation of public order and domestic public law. In order to avoid the influence of the abuse of public order reservation system on surrogate children and same-sex willing parents, this paper mainly discusses the application of the "objective theory" which emphasizes the result and justice and the protection of the best interests of the child as well as the concrete application of the public order reservation system.
【学位授予单位】：东南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D997.1

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