4) Disadvantageous position resulting from the pendency of the case. When a custody dispute arises, it is often the case that one of the parties is prevented from seeing the child and files a corresponding dispute for the confirmation of mother-child relationship, custody and visitation rights. What's worse is that the outcome of such a judgement often keeps this unfair arrangement: as time is consumed during the trial, the child would have higher possibility to be considered as forming a stable life with current family members. Therefore the reference to "private life" by the Chinese courts, as well as the European Article 8 of the Convention, may lead to a further disadvantage over time for the person whose rights have been violated.
court decisions all emphasized the illegality of surrogacy, none of the cases disputed the identity of the father who had provided the genes. It shows that the intention to prohibit surrogacy and punish the parties who participated or commissioned the conduct even ends up becoming a unilateral benefit to the genetically linked father in the custody cases between intended parents. In the traditional surrogacy cases in Table 3 above, the genetically linked natural mother is still at an unexpected disadvantage. The judgment used the idea of non-disruption of private life, which to some extent has similarities to Article 8 of the Convention which frequently appears in the decisions of European judges, but has no consistency in the evaluation of forming a private life. It is very questionable that in all of the cases of traditional surrogacy, the fathers were considered to have formed a steady private life with the child for only months, in the meantime as in the most typical case Chen Ying vs Luo Ronggeng, where the twins who had lived with their mother since childhood for successive 4 years, were not considered as forming a private life by the Court of First Instance.
Due to the lack of legislation, judging the surrogacy cases is a matter of exercising the judge's discretion in the context of individual facts, in accordance with the law and the underlying principles, while protecting and balancing the legal interests. Just as no two leaves in the world are the same, so in practice the facts of each case are different. This requires judges to have the ability to be realistic and adaptable beyond the underlying principles, and overcome the obsolete patriarchal mindset.
3. Whether an intended mother can acquire maternity is unfairly influenced by the biological father. For example, the way to form maternity, i.e. the establishment of a quasi-kinship, according to the analysis here is either adoption or the formation of a step-mother-child relationship, both of which require a marital relationship with the intended father. And in case A.M. vs Norway, adoption requires the consent of the biological father, and the simplified way of adoption does not apply to cases where the intended parents are not married and the child is born as a surrogate - even if they originally commissioned the surrogacy by mutual consent and specifically confirmed the registration of the intended mother's name on the foreign birth certificate. On the other hand - although not only happens to the mother in surrogacy cases - a fact that appears in many different cases here in the analysis is that the child was taken by the father's side and prevented the mother from meeting the child and exercising her visitation rights. In this circumstance, the chance of
having the child back is decreasing day by day since the possibility of being regarded as having formed an undisturbed private life with the father and the family of the father.
All of the findings have shown the urgent need of preventing implicit discrimination in custody determinations, as well as providing sufficient protection to the mothers in surrogacy.
It is significant to balance the public order, the best interest of the child and the equal position and rights between the intended parents, and to provide as much protection as possible for the intended mother while maintaining the basic attitude of the nation towards surrogacy.
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