关键词: 代孕, 监护, 法规出发型诉讼, 事实出发型诉讼, 儿童利益最大化

Abstract: Guardianship dispute raised by surrogacy reveals conflict between stability structure of law and justice. But justice must be based on laws and regulations and it should accord with legal norm. According to the different starting point of litigation, there are the law-driven stand and the fact-driven stand. And the litigation of civil law system belongs to the former and the common law system belongs to the latter. There is no doubt that legal system in our country is the statute law system of the civil law system; therefore, the starting point of litigation is only on the basis of current laws and regulations. The solution of the custody disputes raised by surrogacy should not be based on the idea of ethics, or individual or hierarchical justice but on the legal rule. It is necessary to adjudicate according to the laws. Cases in this paper, with the requirements of maximizing the interests of children, can be solved without breaking the law stability, and by achieving individual justice.

Key words: surrogacy, guardianship, the law-driven stand, the fact-driven stand, maximizing interests of children