It goes without saying that surrogacy is an extremely complex issue. So-called traditional surrogacy occurs when the surrogate mother and child are biologically related. Gestational surrogacy, meanwhile, is when the child is not related by blood to the woman carrying it to term. Depending on whether the surrogate receives remuneration from the intended parents, surrogacy can be further defined as altruistic — when no money changes hands — or commercial, when there is a financial transaction involved.

Neither the Chinese National People’s Congress (NPC) nor its Standing Committee has ever expressly recognized or banned surrogacy. However, in 2001, the Ministry of Health — now called the National Health and Family Planning Commission — implemented Article 3 of the Administrative Measures for Assisted Human Reproductive Technology. The article prohibits medical organizations and personnel from performing any form of surrogacy procedure.

Two years later, the health ministry issued two additional regulatory documents that reaffirmed the ban on surrogacy procedures. The government indirectly clarified its position as “banning the use of assisted artificial reproductive technology to perform surrogacy operations.” Article 3, however, is simply not up to the task of solving the current complex tangle of legal and regulatory problems related to surrogacy.

To begin with, the administrative regulations implemented by the former Ministry of Health make no mention of the use of non-assisted reproductive methods in surrogacy operations. Currently, the use of natural insemination in surrogacy is quite common in China, and the number of lawsuits involving questions of sole care and control, visitation, parenthood of the child, and remuneration for surrogacy stemming from this oversight is on the rise.

In addition, most courts have broadly rallied behind the doctrine of “no violation of public order and good customs,” choosing to invalidate all surrogacy agreements, regardless of their nature. This leaves no room for discussion of whether altruistic surrogacy agreements actually violate this doctrine, or whether the courts should treat such arrangements differently from commercial surrogacy.

Chinese courts also typically decide questions of parenthood on a solely genetic basis. In cases involving traditional surrogacy, the surrogate mother and the intended father are recognized as the legal parents of the child; in cases of gestational surrogacy, it is usually the intended parents who provide the embryo. However, in gestational surrogacy cases where the egg or sperm is provided by an anonymous donor, it is difficult to ascertain the parenthood of the child. This leads to uncertainty as to who should assume legal responsibility for the child, and could result in one parent or the other trying to avoid their legal duty, especially if the child is born with a disability. In such cases, it is also unclear who should act as the child’s guardian, which can have a seriously adverse impact on the child’s interests.

In cases where the surrogate mother and intended father are named the child’s legal parents, many courts award the right to sole care and control of the surrogate child on the basis of previous rulings by the Supreme People’s Court on custody rights in divorce cases. However, surrogacy and divorce are quite clearly two different situations, and determining questions of sole care and control, as well as visitation, in surrogacy cases on the basis of divorce law may lead to decisions that are not in the best interests of the children. 

For instance, women who agree to become surrogate mothers for financial reasons are not necessarily capable of providing children with a healthy family environment. If the court awards sole care and control of a young child to the child’s biological mother — as is typical in divorce cases — the child could face a more difficult upbringing. Moreover, the role of the intended mother is not accounted for if divorce law is applied to surrogacy cases. Of the parties involved, she may well be the one best able to care for the child, but in sole care and control disputes involving surrogacy, she is left out of the discussion completely.

In recent years, the existence of medical organizations and professionals who are willing to violate the ban on surrogacy procedures has become an undeniable fact. Black market surrogacy organized through agencies is a growing problem, and the implementation of the two-child policy will only lead to a further rise in the demand for surrogates. In light of this, either the NPC or its Standing Committee should clarify the legality of surrogacy.

I propose that we legalize altruistic gestational surrogacy — that is, procedures involving a third-party surrogate mother with no biological relation to the child, and who receives no financial compensation for taking on the role. To protect the interests of the surrogate mother, the intended parents, and the surrogate child, the government should establish clear rules specifying the qualifications for both the surrogate mother and intended parents, as well as the conditions for surrogacy, the restrictions on reimbursement, the privacy of those involved, and the child’s right to know of that it was born from the arrangement.

A neutral supervisory organization should also be established to oversee, investigate, and record surrogacy arrangements. In addition, we must draw up a special set of regulations to establish the parenthood of children born from surrogacy, ensuring that the intended parents are named the child’s legal parents as quickly as possible, thereby clarifying the family status of all those involved.

At the same time, lawmakers should put in place a clear ban on commercial surrogacy, on the grounds that it runs counter to public order and good customs. The law should define the legal liabilities of surrogacy agencies and people who participate in advertising, networking, and arranging commercial surrogacy operations. Most importantly, for this ban to be truly effective, the government must ensure that it is implemented and enforced effectively across the country as a whole.

Translator: Kilian O’Donnell; editors: Hu Sumin and Matthew Walsh.

(Header image: The Image Bank/VCG)