关键词: 代孕, 代孕协议, 法律行为, 公序良俗, 生育权

Abstract: The validity of surrogate pregnancy agreement，in China’s academic and judicial circles，has aroused great controversy. In essence，the surrogacy agreement is one of the categories of legal action，so the validity theory of legal actions can be applied to the cognizance of its validity. Traditionally，however，surrogacy agreement is regarded as invalid because it violates administrative rules or the principle of public order and good social customs. This view seems to be consistent with the theory，but in essence it is inconsistent with the spirit of legislation and the social reality. In fact，the surrogacy agreement not only conforms to legal action’s essentials of legitimacy，but also does not violate the connotation of the principles of public order. If the validity of the surrogacy agreement is denied，then this will bring unpredictable risks to the parties of the agreement. Therefore，in the future judicial application and possible legislative amendments，the validity of the surrogacy agreement must be clearly recognized.

Key words: surrogacy, surrogacy agreement, legal behavior, public order and customs, procreation right