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代孕技术的发展与成熟不仅为不孕夫妇带来福音,也是我国计划生育政策的长期推行下对于失独父母的基本关怀和保障。但代孕合同将身份关系委托置于合同中显然超越了《合同法》的调整范围而导致现有法律对代孕合同的完全否定。然而,实践中“地下代孕”的禁而不止以及大量代孕合同的实际履行也时时刻刻呼唤着代孕部分合法化。从确立代孕法律性质到具体制度建设固然须步步谨慎,但终会在道德、法律、伦理之间摸索出代孕存在的合理空间。本文旨在肯定代孕部分合法的基础上,着重分析代孕合同的订立履行阶段的争议及破解建议,设想防范和处理可能出现的消极后果。
The development and maturity of surrogacy technology not only bring gospel to infertile couples, but also the basic care and protection of the parents who lost their daughters under the long-term implementation of the family planning policy in our country. However, placing surrogate contract in the contract entrusts the relationship clearly beyond the scope of the “contract law” of the adjustment resulting in the existing law on the surrogate contract completely rejected. However, in practice, the ban on “underground surrogates” and the actual performance of large surrogate contracts also call for the partial legalization of surrogacy. Although it is necessary to be cautious in establishing the legal nature of surrogacy and building a concrete system, it will eventually find a reasonable space for surrogacy between morality, law and ethics. The purpose of this paper is to affirm the legal part of surrogacy and focus on the analysis of the dispute and suggestion on the stage of implementation and surrender of surrogacy contract. It is envisaged to prevent and deal with the possible negative consequences.