Surrogate twins lost their father, grandparents and foster mothers competed for custody, and the second trial was rejected.

The couple who failed to conceive after marriage are eager to have children, and try their best to find eggs and then "borrow the abdomen" to give birth to a pair of twins. However, something unexpected happened. A pair of children were only three years old, but the father of the child suddenly fell ill and died. For this reason, a lawsuit "war" broke out between in-laws and daughter-in-law for custody of the child.Mothers who have raised their children for many years are not related by blood, grandparents who are related by blood are too old to bear the heavy responsibility of raising, and the identity relationship between the two "mothers" who provided eggs and gave birth to children behind the case, and the inheritance of the father of the child …This lawsuit, which is entangled with family, blood and ethics, is doomed to be not simple.

On the morning of June 17, the Shanghai No.1 Intermediate People’s Court made a final judgment on this case, and rejected the grandparents’ claim to be guardians of their children and raise them.

After the verdict, the mother who raised the child for many years shed tears on the spot with her attorney.

Remarried couples "customize" surrogate twins

Jun Gao is the only son of Lao Gao and his wife. On April 28th, 2007, after two failed marriages, Jun Gao married lin li, who was also divorced. After marriage, lin li revealed to her husband that she was suffering from infertility and offered to raise children related to her husband. After discussion, the two decided to find someone to surrogate.

They found a surrogacy company online, bought other people’s eggs, provided sperm by Jun Gao, and entrusted another woman to give birth by in vitro fertilization combined with embryo transfer technology. Although it cost hundreds of thousands of yuan before and after, Jun Gao lin li finally got a pair of lovely dragon and phoenix twins Xiao Qing and Xiao Shi on February 13th, 2011.

The man died of illness, and his in-laws and daughters-in-law sued for "taking treasure"

In February 2014, Jun Gao died suddenly because of acute pancreatitis. The sudden change not only made the two children lose their father, but also caused irreconcilable contradictions between Jun Gao’s parents and wife because of their children.

On December 29th of the same year, Lao Gao and his wife brought lin li to court, and the two sides went to court for the custody and support of their children. Lao Gao and his wife claimed that their son Jun Gao was the biological father of the two children, but lin li was not related to the children by birth, so they asked him and his wife to obtain custody of the two children.In order to prove their parenting ability, Lao Gao and his wife also produced a promise from their daughter who lives in the United States, proving that her daughter is willing to help them raise two children.. Lilin firmly disagreed with the old man’s petition, saying that "I have been raising the two children, and they should be presumed to be the legitimate children of Jun Gao and me. If they can’t be identified as legitimate children, then they will live with me from the date of birth and form a de facto adoption relationship. " Lin li’s agent ad litem also argued that if the court could not identify Xiaoqing and Xiaoshi as legitimate children of Jun Gao and lin li or actually adopted children, the plaintiff Lao Gao and his wife’s claim to be guardians should also be rejected if they could not determine whether their biological mother died or lost their guardianship.

In the trial of the first instance, the court entrusted an authoritative organization to carry out DNA identification, and the conclusion was: Jun Gao’s parents, Xiao Qing and Xiao Shi were not excluded from the genetic relationship, but lin li could be excluded as the biological mother of Xiao Qing and Xiao Shi. On July 29th, 2015, the first instance ruled that Xiaoqing and Xiaoshi were under the custody of the plaintiff Lao Gao and his wife, while lin li entrusted Xiaoqing and Xiaoshi to the custody of two plaintiffs, on the grounds that the legal adoption relationship was not established due to the lack of statutory essential elements between lin li and Xiaoqing and Xiaoshi, and the surrogacy itself was not legal, and lin li and Xiaoqing and Xiaoshi did not constitute a fictitious blood relationship.

The second trial found that custody belongs to the foster mother.

After the judgment of the first instance, lin li refused to accept it and appealed to the Shanghai No.1 Middle School. On November 16th, 2015, the Shanghai No.1 Intermediate People’s Court held a public hearing to hear the appeal case. During the hearing, the two sides had a heated debate on the legal status of the children born by surrogacy, whether lin li and Xiaoqing and Xiaoshi established a fictitious blood relationship, and the custody of Xiaoqing and Xiaoshi.

Because Jun Gao ran the company before his death and left a lot of legacy after his death, lin li said in court: "If I get custody of the children, I will raise them by my own ability, and I agree that the court will freeze the property inherited by the two children until the children reach the age of 18." Lin li also said that if she obtained the custody of her two children, she would allow her parents-in-law to visit them. However, this statement was not accepted by Lao Gao and his wife, who always insisted on obtaining custody of their two children.

After hearing the case, Shanghai No.1 Intermediate People’s Court held that Xiaoqing and Xiaoshi were the children born by Jun Gao and other women through surrogacy after lin li and Jun Gao got married, and they belonged to the illegitimate children of one of the spouses after the marriage. After their birth, the two children lived with Jun Gao and lin li for nearly three years, and Jun Gao lived with lin li for two years after his death.Lin li, Xiao Qing and Xiao Shi have formed a stepparent-child relationship, and their rights and obligations are governed by the provisions of the Marriage Law on the relationship between parents and children.As grandparents, Lao Gao and his wife are in the custody order after lin li, so their claim for custody does not meet the conditions stipulated by law. At the same time, considering the principle of children’s best interests, it is more conducive to the healthy growth of children to obtain custody from lin li, so the appellee Lao Gao and his wife’s original claim was rejected.

The second trial found that custody belongs to the foster mother.

[Judge Wired] The legal relationship of surrogacy derivatives needs to be clarified

Hou Weiqing, the presiding judge and presiding judge of the collegiate bench in this case, said that the determination of paternity of the children born by surrogacy is complicated, which is related to the realization of the purpose of surrogacy, the interests of all parties, the protection of the rights and interests of the children born by surrogacy, and the public’s acceptance based on traditional ethical concepts and cultural background. At present, China’s laws lack relevant provisions on this. Theoretically, there are four theories: consanguinity theory, childbirth theory, contract theory (or artificial reproduction purpose theory) and children’s best interests theory. The court held that the "childbirth theory" conforms to the principle of "the parturient is the mother" in the traditional civil law, and is also the same as the standard of paternity in the other two artificial reproduction methods, and conforms to the traditional ethical principles and values of our country. In addition, the principle of "the parturient is the mother" is also consistent with the current position of prohibiting surrogacy in China. Therefore, it is concluded that the legal biological mother of the child born as a surrogate in this case should be recognized as a surrogate according to the principle of "the parturient is the mother"; The legal biological father is Jun Gao who is related by blood. Because there is no legal marriage relationship between Jun Gao and the surrogate, the children born are illegitimate children.

In this case, the foster relationship between stepparents and children was formed.

Hou Weiqing said that the scope of stepparents’ children should not be limited to children born in wedlock, but also include children born out of wedlock. However, when the Marriage Law distinguishes the stepparents-children relationship between lineal in-laws and fictitious blood relatives, it is based on the fact that there is upbringing education. As for whether the birth time of children is before or after the marriage, it is not the essential element to identify the stepparents-children relationship with dependency. In the past five years, lin li has completely regarded the two children as her own children, and has fulfilled the obligations of raising, protecting, educating and caring for the children as a mother. Therefore, it should be considered that the relationship between the two sides has been formed. Once the stepparents-children relationship of this fictitious consanguinity is formed, it will not be dissolved by the death of the parent of the husband and wife. Therefore, the death of Jun Gao cannot naturally terminate the existing stepparents-children relationship with lin li and his two children.

Surrogacy is illegal, but the interests of children are great.

Hou Weiqing also said that no matter how to deny and condemn illegal surrogacy, the children born by surrogacy should be innocent and their legitimate rights and interests should be protected by law. Therefore, children born in or out of wedlock, children born naturally or children born by artificial reproduction, including surrogacy, should be given equal protection. According to the principle of children’s best interests, considering the guardianship ability of both parties, children’s needs for living environment and emotion, and the influence of family structure integrity on children, it is more conducive to the healthy growth of children to have custody in lin li. Therefore, the custody of Xiaoqing and Xiaoshi should belong to lin li. (The characters in the text are all pseudonyms)