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随着人工生殖技术的进步及广泛应用,以及国家对二孩政策的全面放开,人们的生育需求也随之凸显。无论是从学理还是从伦理的角度,代孕这一技术逐渐成为人们关注和探讨的对象。但我国目前对代孕仍持保守甚至是明令禁止的态度。对于代孕合同,司法实践中也大都援引公序良俗原则而认定其无效,从而引发了许多法律适用上的困难及冲突判决的产生,所以本文的研究重点在于我国是否有承认代孕合同有效的可能以及于此的限制性条件问题。本文以我国司法案例为基础,通过分析国外对代孕合同持不同态度的典型国家的立法及司法政策,以期能够为我国将来无论是在立法上还是司法实践中都能有所借鉴。
With the progress and widespread application of artificial reproductive technology and the state’s full liberalization of the second child policy, people’s fertility needs also become prominent. Whether from the academic or ethical perspective, surrogacy technology has gradually become the object of attention and discussion. However, our country still holds a conservative or even banned attitude toward surrogacy at present. For the surrogate contract, most of the judicial practice also cites the principle of public order and vulgarity and finds it ineffective, which has led to many difficulties in the application of law and the emergence of conflict judgment. Therefore, the focus of this paper is whether China has the possibility of acknowledging the possibility of surrogacy contract, Restrictions on the issue. Based on the judicial cases in our country, this article analyzes the legislative and judicial policies of typical countries with different attitudes towards surrogacy contracts in foreign countries so as to provide reference for our country in the future both in legislation and in judicial practice.