Gray area in spotlight
Alleged surrogacy black market triggers debate over regulation, legislation
Published: Mar 28, 2024 06:01 PM
A medical staff member cares for a newborn at the neonatal care unit of a hospital in Lianyungang, East China's Jiangsu Province on January 1, 2024. Photo: VCG

A medical staff member cares for a newborn at the neonatal care unit of a hospital in Lianyungang, East China's Jiangsu Province on January 1, 2024. Photo: VCG

On the doors of the women's toilets at Peking University Third Hospital Reproductive Center, it is hard to miss the stickers which bear the words "surrogacy" and "gender selection," along with a phone number. With couples from all over China coming to seek the help of assisted reproductive technology (ART) in the hospital where the first "In Vitro Fertilization (IVF)-baby" in China was born, these stickers are enticing, but also dangerous as surrogacy is illegal in China.

Song Lin (pseudonym), who has been receiving treatment in the reproductive center for five years, trying to have an IVF-baby, is one of those being allured by the stickers. "I have gone through two rounds of egg retrieval and five times of embryo transfer but I still cannot have my own baby… I felt exhausted and thought surrogacy may be the best answer," said Song.

However, when Song dialed the number on the sticker, she could not get through or was told the number does not exist. On WeChat, she later shared her experience in a mutual-aid group among women who are also trying to have an IVF-baby and some warned her of swindlers and some said people they knew had got babies via underground surrogacy services in South China's Guangdong Province.

Song finally gave up the idea of seeking surrogacy due to the high risk. But discussions over surrogacy have continued with underground surrogacy services growing in China due to the increasing demand, and the topic has recently attracted more attention as certain public hospitals in multiple places across China were reportedly involved in commercial surrogacy.

Several hospitals in Central China's Hunan and Hubei provinces, East China's Zhejiang Province and Guangdong Province were also reportedly connected with surrogacy organizations to offer ART related services to surrogate mothers or selling birth certificates, according to media reports. Local authorities vowed to crack down on the illegal use of ART. 

Underground business

According to "Administrative Measures for Human Assisted Reproductive Technology" released in 2001, medical institutions and medical personnel are not allowed to implement any form of surrogacy technology and medical institutions that implement surrogacy technology will be given a warning and a fine of up to 30,000 yuan and may be held criminally liable. In 2007, the former Ministry of Public Health (now the National Health Commission) revised several administrative measures and regulations related to ART and reiterated "the implementation of surrogacy technology is prohibited." 

But underground surrogacy service continues to grow in China with some organizations offering packaged service to cater to the different needs. 

"Our patients include those who prefer not to give birth and also those who suffer infertility or aphoria," Jessy, who works in a Beijing-based private medical institution, told the Global Times. 

The institution's services include offering egg and sperm retrieval of the clients in the institution and arranging blastocyst embryo transfer into the surrogate mother in public hospitals to "legalize" the procedure. The institution also provides antenatal care to the surrogate mothers. The total price is around 600,000 to 800,000 yuan, according to Jessy.

For those who worry about the legitimacy of surrogacy in China, Jessy said her institution could also help clients go to the US to use surrogacy, and the total fee is about $140,000.

Heated discussions 

Although Jessy's institution also promised to offer health certificate to baby born through surrogacy to eliminate worries, the legal concerns still exist. In fact, for years, the discussions over whether surrogacy should be allowed among specific groups or how to further regulate the using of ART have been ongoing. 

There are also voices in China that strongly disapprove of surrogacy in any form with some noted that surrogacy not only violates human dignity and fair reproductive rights, it also causes legal disputes.

There are multiple legal risks related to surrogacy in China and contract disputes caused by surrogacy occur frequently as various parties have been involved in the contract. And the standards for judging similar cases and the application of foreign-related laws urgently need to be unified, Zhong Lan'an, a lawyer from the Beijing-based Jingsh Law Firm, told the Global Times. 

Surrogacy may involve issues such as custody and property inheritance for children born out of wedlock. It may also cause disputes over the spouse's reproductive rights, confirmation of parent-child relationship, liability for children's health, and liability for the surrogate mother's health, said Zhong. 

For cross-border surrogacy, additional legal issues, including nationality and immigration may arise given that different countries have different legal regulations on surrogacy, said the lawyer.

Despite the legal risks and prohibition of surrogacy in China, it has continued to be practiced to cater for the growing demand. Zhong noted that as China's population ages and the fertility rate continues to decline, some people who have a very urgent need to have their own children can have their demand met through surrogacy. But the surrogacy industry is full of chaos and needs to be regulated and managed through legislation.

Huang Wenzheng, a demography expert and senior researcher at the Center for China and Globalization, believes surrogacy should be allowed for some groups, including couples who are unable to have children and those who are past the fertile years but have lost their only child. 

Simply banning surrogacy may lead to thriving underground services, resulting in more chaos and illegal activities, said Huang, advising to improve legislations on surrogacy and strictly control the applied range of surrogacy and strengthen supervision of related industries.  

Although discussions over the ethical and legal dilemmas in surrogacy remain in China, many scholars who hold different views on surrogacy agree that the country needs to improve the legislation and regulation on surrogacy and adapt to the adjustment of reproductive policies, and the development of surrogacy technology. 

Moreover, efforts should also be made to ensure that citizens have access to safe, standardized and effective ART services, minimize the risks of assisted reproductive services, and improve medical conditions for couples who seek ART technologies, analysts suggest.