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As a surrogate mother, can you visit your child?

2020-01-23 Release time: 2020-01-23

A young woman signs a surrogacy agreement with a middle-aged man, stipulating that the child born will be raised by the man, and the woman must not claim any rights after receiving remuneration. After the agreement was signed, both men and women gave birth to a girl through natural and direct conception, and the man brought the child home with his wife to raise him as agreed. Afterwards, the surrogacy party regretted the surrogacy agreement and demanded that the child's right of visit be exercised on the grounds that the child is his biological. The man rejected the woman's request on the grounds that the two parties had signed a surrogacy agreement and that the woman could not claim any rights, including visitation rights, after receiving the remuneration. Disputes arose between the two parties and were eventually brought to court.

Naturally conceived and gave birth to a daughter in October. Can a "surrogacy" agreement prevent the right to visit the biological mother? The two-level court in Zhenjiang City, Jiangsu Province, gave the answer.

One moment of difference, "surrogacy" for others

Chen, 55, is a well-known private entrepreneur in Zhenjiang City, Jiangsu Province, and has a deep relationship with his wife, Feng Mou. Unfortunately, the Chens have no children or children under their knees, which has always been a pain in their hearts. A few years ago, after a long ideological struggle, Feng decided to make a sacrifice and persuaded her husband to find a woman to surrogate and inherit the family business. Chen finally accepted his wife's suggestion.

In Chen's business circle, there is a WeChat group, and the friends in the group are business partners across the country. One night in early 2015, Chen met 26-year-old woman Guo in this WeChat group. Mr. Guo is unmarried and unfertile, his work is unstable, and there must be demand for the economy. Chen thinks that Guo is the best surrogacy option. So he tempted on WeChat: "I have no children and no one inherits my family business. I would like to find a surrogate for my mother and have a child to deliver my incense. Do you think my idea is ridiculous?"

"No!" Guo replied without thinking, "I believe there will be girls who will."

"Would you like to help me with a surrogate?" Before the other party answered, Chen immediately sent a second message: "I can pay a lot of surrogacy."

This remark made Guo very angry, and she made a few angry and mad expressions.

"I'm just kidding, why do you take it seriously!" Chen quickly lost the compensation.

However, that night, Guo was lying in bed and couldn't sleep. The word "surrogacy" has been lingering in her mind: she never thought of making money through surrogacy, but the huge remuneration of surrogacy is really tempting. Surrogacy can make herself struggle for many years at a time.

Surrogacy or not? In the next few days, Guo was very tangled. After a fierce ideological struggle, she felt that no one would know that she was a surrogate for Chen a thousand miles away. In order to make a huge sum of money, she decided to go out. After some bargaining, Chen and Guo reached an agreement on surrogacy.

On March 24, 2015, Guo rushed from his home in the Northeast to Zhenjiang, Jiangsu, thousands of miles away.

When they met for the first time, Chen was very satisfied with Guo. The two signed and confirmed the oral agreement reached on the Internet. The two parties jointly signed the "Cooperation Agreement" and agreed that: Party A Chen and Party B Guo reached agreement on a completely voluntary basis. For the surrogacy agreement, Party B completely voluntarily surrogates for Party A. From now on, the surrogacy party will be arbitrarily paid every month. Party A will pay Party B five days in advance in cash directly. The total compensation for surrogacy is 300,000 yuan. ; The surrogacy compensation, compensation and living expenses are all delivered by Party A to the designated account of the surrogacy party; the surrogacy party shall not claim any rights to Party A after Party A has paid all the expenses in accordance with the agreement ...

Once the child is born, the biological daughter cannot meet

After the agreement was signed, Chen told Guo that he learned from online investigations that there are three ways of surrogacy: the first is artificial insemination and surrogacy, that is, the demand-side sperm is sent into the body of the surrogate by medical aids and carried out in the body. Fertilization and complete the entire pregnancy process; the second is in vitro baby surrogacy, using the demand-side eggs and sperm to make a test-tube embryo, implanted in the body of the surrogate to complete the entire pregnancy process; the third is the natural conception, that is, The man and the woman made the woman pregnant directly through having sex.

"Artificial insemination and IVF surrogacy, the woman is more painful and the success rate is relatively low. And the direct natural conception, not only does the woman have no pain, the success rate is high, and the quality of the child is also good." Chen Mou asked Guo Mou: "What kind of conception do we take?"

After a moment of thinking, Guo felt that it was meaningless to bear unnecessary pain and agreed to adopt a natural conception.

In November 2015, Guo successfully got pregnant and gave birth to a daughter in August 2016. The "Medical Certificate of Birth" issued by the hospital records the mother Feng and father Chen.

After the child was born, in accordance with the agreement signed by the two parties, Chen paid in full a total of more than 380,000 yuan, including surrogacy and compensation, to Guo, and then took the child home and raised him with his wife Feng. After receiving a reward, Guo returned to his home in the Northeast, and the two returned to their original circles of life.

However, after returning to the Northeast for a period of time, due to the nature of motherhood, Guo missed his children more and more. From Northeast to Jiangsu many times, he begged the Chens and his wife to let her see the children. To reject. In order to see the children, Guo quit his job and came to Zhenjiang.

"The child was born in October with my childbirth. It was the meat that fell off my body. Can the 380,000 yuan buy out the mother-daughter relationship?" Each visit was rejected, and Guo was extremely distressed. "I was blinded by money before I lost my eyes and made a mistake. I now regret it. Would I be wrong to use my mother's love to make up for my child again? As a mother, would I have no right to see my child? "

In the end, Guo went to the court to claim his right to visit the child. Guo claimed that: I met Chen in March 2015, I became pregnant in November 2015, and gave birth to a daughter in August 2016. Chen took the child away shortly after the child was born. I have come to the door many times, hoping to meet my daughter. However, Chen was flatly rejected every time. Although Chen and I are not husband and wife, the daughters we give birth through natural conception are legally illegitimate children. According to the law, children born out of wedlock have the same rights as children born in wedlock, and both have the right to be visited by their biological parents. As a biological mother, I have the right to visit my illegitimate daughter according to law. Therefore, I asked the court to order me to visit an illegitimate daughter four times a month. Each visit can bring the child back to life for two days. Chen should assist and ordered me to take half of my illegitimate daughter back to the common life during the winter and summer vacation. Holiday time.

Chen argued: Guo's visit to the child is not conducive to the physical and mental health of the illegitimate daughter. Since the birth of the child, my wife and I have been taking care of him; the way of visiting is not operable. At present, Guo does not have the ability to support. And the illegitimate daughter currently lives abroad and her right of visit cannot be implemented. Therefore, the court was requested to decide to suspend Guo's visiting right.

Chen presented the "Cooperation Agreement" to the court to prove that there was an agreement between him and Guo, and Guo believed that the "Cooperation Agreement" violated public order and good customs, and its legitimacy was not recognized. The agreement was an illegitimate child agreement. The content of the agreement has nothing to do with the right of visit in this case.

Violation of public order and good faith, surrogacy agreement invalid

After hearing, the court held that: the "Cooperation Agreement" signed between Guo and Chen, stipulated the rights and obligations between the "needs" and "surrogates" and the attribution of children born, and the contents violated public order and good customs. 2. Violating the spirit of legal principles and legal provisions, the agreement is invalid. Although the "Cooperation Agreement" is invalid due to violation of law, the child was born by Chen and Guo through natural and direct conception during the marriage relationship with Feng, and the child was born out of wedlock. Equal rights, no one can harm and discriminate.

The child has been raised and taken care of by the Chen couple since birth, and has formed a de facto fostering relationship with Feng. According to Article 27 (2) of the Marriage Law, the rights and obligations between the stepfather or stepmother and the stepchildren who have received their upbringing education, Applying the relevant provisions of this law on the relationship between parents and children, as a foster mother, Feng has become a stepmother with a child's upbringing and education relationship based on subjective parenting will and factual parenting behavior. Therefore, she has risen to the same status as the biological mother Guo, and her rights and obligations apply. Provisions of the marriage law on the relationship between parents and children. Therefore, the child has two mothers, Guo and stepmother Feng. Throughout this case, stepmother Feng has been raising and caring for the child and has the ability to support him. The purpose of giving birth to the child is to obtain compensation and other costs. After raising a child, Feng has formed a foster parent-child relationship with Chen based on the subjective will of raising and the facts of raising education. As a child ’s stepmother and Chen, he has raised and cared for the child and has formed a complete family.

According to the principle of maximizing the interests of children, from the perspective of benefiting the healthy growth of minors, the law grants the right to visit the father or mother, provided that it is beneficial to the physical and mental health of the child, and the birth of the child is based on a consideration transaction. Asking for a child and paying a high price, Guo Mou had a child for the cost. From the process of Guo Mou and Chen Mou's cognition, it can be seen that there is no feeling between the two. Guo stated that he was concerned about the child, but during the trial, he did not provide evidence about his concern about the child's life and growth after giving birth. Although Chen did not provide information on his current living, from the high price of Chen's behavior, Chen is very likely to raise his child with all his heart. The child is currently under the age of two, he is still young, and his mental development is incomplete. The ability is not formed, and it needs a stable family environment. Part of this stability comes from the integrity and health of the family, and Chen and his spouse Feng can provide such an environment for their growth. Part of the stability comes from exclusion. External interference forms a certain closed space, which does not cause trouble to the child due to the status relationship, so that the child's mental and psychological development is not affected by this. Therefore, the court held that Guo, the biological mother, had the right to visit, but visited based on the above reasons The child is not conducive to the child's physical and mental health. Therefore, the court did not support Guo's lawsuit requesting to visit the child.

The court of first instance accordingly rejected all of Guo's claims.

Guo refused to accept and appealed to the Zhenjiang Intermediate Court. The reasons for the appeal are as follows: First, the facts of the first instance were found to be wrong. Mr. Chen did not provide relevant evidence to prove that there is an unfavorable situation in visiting my child. The judgment of the first instance found that I did not care about the child, and it was also a mistaken determination that lacked common sense. In the first instance, it was incorrectly determined that Feng had a de facto relationship with the child. When I was pregnant for more than 6 months, both parties terminated the performance of the agreement. After the child was born, the money that Chen paid to me was not a surrogacy fee. It was Chen who took the initiative to pay, without mutual agreement. After the child was born, it was illegal for Chen to hide the child. There is no evidence to prove that I am a full-time surrogacy, so it is wrong to determine that I am a full-time surrogacy in the first instance. Second, the law is wrong. I have the right to visit my child. I cannot deny and deprive me in disguise. The first trial never applied the provisions of the Marriage Law correctly, nor did I consider the protection of the rights of minors in accordance with the law. It was wrong to dismiss my claim in the first trial. The court of first instance did not consider the age and work of the Chens and the couple, and ignored Feng's true emotional attitude towards the child. Therefore, I requested that the original sentence be revoked and the sentence be changed in support of my claim.

On August 13, 2019, after the trial of Zhenjiang Intermediate People's Court, a final judgment was made in accordance with Article 170, Paragraph 1 of the Civil Procedure Law of the People's Republic of China: the appeal was rejected and the original sentence was upheld.

"Children's benefit maximization" principle

With the development of social economy, people's living pressure increases, infertility situation gradually increases, and the surrogacy that comes with it comes into being. China only prohibits surrogacy. There are no specific regulations on the specific problems caused by surrogacy. However, the phenomenon of surrogacy has become more apparent in real life. Due to the complicated character relationships and chaotic legal relationships involved in surrogacy, especially the separation of genetic mothers, willing mothers, and pregnant mothers, the identification of mother-child relationships is complicated, and whether or not a surrogate mother has access It is difficult to determine and often becomes the main controversy in surrogacy cases.

In response, relevant legal persons pointed out that surrogacy is illegal, is not protected by law, and the surrogacy agreement is invalid. Surrogacy itself has a certain impact on the destruction of social ethics and relationships with the family. It does not conform to traditional moral ethics and violates social customs. However, in the case of natural conception, the surrogate mother has blood relationship with the child. Legally speaking, it is actually a child born out of wedlock. Both the male and female are the biological parents of the child and should bear the child's upbringing obligations. , Also enjoy the right to visit children. However, the court's determination of the surrogacy of surrogacy mothers was based on the principle of “maximizing the interests of children”. In reality, mothers who are engaged in surrogacy often do not have the conditions to raise and educate their children, and those who require surrogacy generally have relatively superior conditions in all aspects, and have greater advantages in child rearing education. Therefore, surrogate mothers often lose the right to visit because they do not have the conditions of "maximizing children's interests" when they fight for the right to visit.

Specific to this case, the judge undertaking the case pointed out that the focus of the dispute in this case was whether Guo's visit to the child should be supported in this case. The "Cooperation Agreement" signed by Guo and Chen is invalid because it violates public order and good customs, so the agreement is not legally binding on both parties. Because the child was naturally conceived by both sides and Guo gave birth, the child was deemed to be the daughter of Guo and Chen. As a biological mother of a child, Guo has the rights prescribed by law, including when the child is directly raised by Chen, and Mr. Guo has the right to visit the child.

However, according to Article 38, Section 3 of the Marriage Law, the right of a parent or mother to visit a child shall be subject to the principle that is in the best interest of the minor, that is, if the parent or mother visits the child and is not conducive to the child's physical and mental health, it shall be suspended temporarily The right to visit. In this case, the two parties could not reconcile the visit, there was a certain conflict in the relationship, and the child was under the age of 2 before the end of the first-trial debate. It was not suitable for visits in a situation where the relationship between the two parties was not harmonious and mutual trust was not high. The child has lived in Chen somewhere since he was a child, and he has formed a relatively stable state of life. Under the current circumstances, it is not suitable for Guo to ask for a way of returning the child to live together. Because it is not conducive to the healthy growth of the child, it is not appropriate to support Guo's visit request at this time.

(Source: Procuratorate Daily)

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