The Legal Landscape of Surrogacy in China

Abstract

Surrogacy has increased globally due to the development of medical technology. In light of the abolition of the one-child policy in China, demand for surrogacy among Chinese citizens has increased, especially in single-child families that would like a second child but worry about childbearing at an advanced age. Meanwhile, highly educated women tend to have children at an advanced age. Hence, the need for surrogacy has risen. However, current policies and laws in China prohibit surrogacy, resulting in a domestic black market and people seeking international surrogacy. This article surveys legal and judicial practices in China and attempts to forecast whether China is likely to explicitly prohibit or legitimize surrogacy in the short term.

Keywords:

• bioethics
• China
• legal parentage
• surrogacy
• judicial decisions

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Notes

1 Who’s the Mummy? Surrogacy Reform Is Spreading in the Rich World, The Economist (Jan. 31, 2021), https://www.economist.com/international/2021/01/31/surrogacy-reform-is-spreading-in-the-rich-world.

2 See Jacky Boivin et al., International Estimates of Infertility Prevalence and Treatment-Seeking: Potential Need and Demand for Infertility Medical Care, 22 Hum. Reprod. 1506, 1507 (2007). 

3 Nicole F. Bromfield & Karen Smith Rotabi, Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations, 1 Glob. Soc. Welfare 123, 135 (2014).

4 See generally id. at 124.

5 Intended parents, also characterized as commissioning parents, refers to the couple who entrust a surrogate mother to give birth to a child.

6 Bromfield & Rotabi, supra note 3, at 124.

7 See id. at 132.

8 See generally Ruiping Fan, The Confucian Bioethics of Surrogate Decision Making: Its Communitarian Roots, Theoretical Med. Bioethics, Oct. 2011, at 301-313.

9 See generally Jisoo M. Kim, From Jealousy to Violence: Marriage, Family, and Confucian Patriarchy in Fifteenth-Century Korea, 20 Acta Koreana 91, 92 (2017) (explaining grounds for divorce in Korea, which seems to be a similar Confucian ideal as here).

10 Chapter 80 on Benming (本命), in DA DAI LIJI (大戴礼记) [Record of the BOOK OF RITES by Dai the Elder during the Former Han period (东汉)] (206 BEC-8 CE).

11 Fuxian Yi, The Rise and Fall of Confucian Family Values, Institute Fam. Stud. (Apr. 30, 2021), https://ifstudies.org/blog/the-rise-and-fall-of-confucian-family-values.

12 See Aris Teon, Filial Piety in Chinese Culture, The Greater China J., Mar. 14, 2016. The three unfilial behaviors are “deceiving your parents with flattery and leading them to ignore righteousness; not entering public service and making a career when parents are old and living in poverty; not marrying and having no posterity to carry on the ancestral sacrifice.”

13 Mengzi, The Mencius (c. 300 BC) (commonly called the Mengzi, is a collection of anecdotes and conversations of the Confucian thinker and philosopher Mencius).

14 Lei Shi & Luxia Zhan, Establishment of Surrogacy System in China from the Perspective of Functionalism, 79 Cross-Strait Legal Sci. 74 (2019).

15 See Ian Johnson & Cao Li, China Experiences a Booming Underground Market in Surrogate Motherhood, N.Y. Times, Aug. 2, 2014; see also Alexandra Stevenson & Zixu Wang, China’s Population Falls, Heralding a Demographic Crisis, N.Y. Times, Jan. 16, 2023.

16 See Stevenson & Wang, supra note 15.

17 One-Child Policy, Britannica (2023).

18 See Stevenson & Wang, supra note 16.

19 National Bureau of Statistics of China, China Statistical Yearbook 2021.

20 How to Read Low Birth Rate in Light of 480,000 Newborns in 2021, Xinhua News, Jan. 17, 2022, http://www.news.cn/politics/2022-01/17/c_1128272028.htm.

21 Qiqi Yang, The Infertility Rate Is Roughly 12% to 18% in China According to Statistics, CCTV NET, Sept. 15, 2021; see Cissy Zhou, China Population: Infertility Rate Rising Faster Than Expected, New Reproductive Study Shows, S. China Morning Post (June 17, 2021, 8:30 PM), https://www.scmp.com/economy/china-economy/article/3137724/china-population-infertility-rate-rising-faster-expected-new?module=perpetual_scroll_0&pgtype=article&campaign=3137724.

22 Jie Qiao et al., A Lancet Commission on 70 Years of Women’s Reproductive, Maternal, Newborn, Child, and Adolescent Health in China, 397 The Lancet (2021).

23 Chunyan Ding, Surrogacy Litigation in China and Beyond, 2 J. L. Biosciences 33, 35 (2015).

24 See id.

25 What Is the Court System Like in China—China Legal Research Guide, China Just. Observer (May 24, 2020), https://www.chinajusticeobserver.com/a/what-is%20the-court-system-like-in-china. The pyramid of court system in China is primary people’s courts (trial courts), intermediate people’s courts (appeal courts), high people’s courts (appeal courts), and the Supreme People’s Court.

26 Id.

27 See generally id.

28 See infra Sections II.C(i) and (ii).

29 See id. at Section II.C(iii).

30 See Ding, supra note 23.

31 Renlei Fuzhu Shengzhi Jishu Guanli Banfa (人类辅助生殖技术管理办法) [Measures on the Management of Human Assisted Reproductive Technology] (promulgated by the Ministry of Health, effective Aug. 1, 2001).

32 Xiaolei Shi, Why Was Prohibition of Surrogacy Provisions Deleted in the Population and Family Planning Law?, IFENG.COM, July 10, 2018, http://news.ifeng.com/a/20151229/46880773_O.shtml.

33 See Renlei Fuzhu Shengzhi Jishu Guanli Banfa, supra note 31 at art. 3.

34 Id.

35 Id. at arts. 12, 22.

36 Criminal Law of the People’s Republic of China, Art. 336 (promulgated by the National People’s Congress, effective Oct. 1st, 1997).

37 See Renlei Fuzhu Shengzhi Jishu Guanli Banfa, supra note 31.

38 Notice of the General Office of the National Health and Family Planning Commission, the General Office of the Central Propaganda Department, the Secretary Office of the Central Comprehensive Management Office, etc. on the Issuance of the Work Plan for the Special Action against Surrogacy, No. [2015] 22 (Apr. 3, 2015).

39 Id.

40 The National Health Commission Announced a Special Action to Combat Illegal Medical Practice, the Eighth of 12 Typical Cases: Illegal Surrogacy in Wuhan, Hubei Province, PKULAW, No. CLI.C.60775798.

41 Id.

42 Id.

43 See Renlei Fuzhu Shengzhi Jishu Guanli Banfa, supra note 31 at art. 2.

44 Civil Code of the People’s Republic of China [Civil Code] art. 8 (promulgated by the National People's Congress, effective Jan. 1, 2021).

45 Id. at art. 143.

46 Id. at art. 8.

47 Id. at art. 143.

48 Id. at art. 143.

49 According to Legislation Law, the hierarchy of Chinese jurisprudence is that laws are made by the Congress, administrative regulations are promulgated by the State Council, local regulations are promulgated by local congresses. Rules include State Council departmental rules, which are promulgated by ministries of the State Council, and the rules of local governments, which are promulgated by local administrative governments. Laws have supremacy over administrative regulations, which have supremacy over rules.

50 Civil Code: Practice Version 134 (China Legal Publishing House, 2020).

51 Donna Dickenson & Britta van Beers, Surrogacy: New Challenges to Law and Ethics, 26 New Bioethics 293, 294 (2020).

52 Supra note 44 at art. 153, ¶ 2.

53 Id. at art.1009.

54 Id. at art. 1009.

55 See generally id. at arts. 8, 143, 1009.

56 See id. at arts 8, 143, 1009.

57 The Emotional and Medical Risks of Surrogacy: What to Expect, SURROGATE.COM (Mar. 1, 2023), https://surrogate.com/surrogates/pregnancy-and-health/emotional-and-medical-risks-of-surrogacy/.

58 Ms. Sun v. Sears International Consultation Co. Ltd., 03 Minzhong 9212 (Intermediate People’s Court of Shenzhen, Guangdong Province, Civ. Judgment 2018).

59 Id.

60 General Principles of the Civil Law of the People’s Republic of China, art. 8 (1986) [General Principles] (repealed by Civil Code); Contract Law of the People’s Republic of China, arts. 7, 153, ¶ 2 (1999) [Contract Law] (repealed by Civil Code).

61 See id.

62 See id.

63 Sears International Consultation Co. Ltd., 03 Minzhong 9212.

64 Id.

65 Id.

66 Id.

67 Ouyang v. Liu Yanling, PKULAW, CLI.C.407448984 (Intermediate People’s Court of Chenzhou, Hunan Province, 2019).

68 Id.

69 Id.

70 See Sears International Consultation Co. Ltd., 03 Minzhong 9212; see also Ouyang, CLI.C. 407448984; see also Ms. Chen v. Grandparents, Hu Yi Zhong Shao Minzhong No. 56 (First Intermediate People’s Court of Shanghai, Civ. Judgment 2015).

71 Id.

72 Law of the People’s Republic of China on Maternal and Infant Health Care, art. 23 (promulgated by the Standing Committee National People’s Congress, effective Jun 1st, 1995); Guidelines on Opinion on Updating Birth Registration System Issued by on National Health Commission.

73 Amy B. Frieder, Trans Parenthood in an Era of Assisted Reproductive Technology: Approaches to Defining Motherhood, 34 Harv. Hum. Rts. J. 155, 156-157 (2021).

74 See Civil Code of the People’s Republic of China, supra note 44 at art. 1073, ¶ 1; see Supreme People’s Court, Interpretation of the Supreme People’s Court on the Application of the “Marriage and Family Chapter” Book of the Civil Code of the People’s Republic of China (2020).

75 See Civil Code of the People’s Republic of China, supra note 44 at art. 1073.

76 Ninglan Xue, New Orientation of Marriage and Family Law in Times of China’s Social Transformation, 2 Oriental L.J. 40 (2020).

77 Id.

78 Ms. Chen, Hu Yi Zhong Shao Minzhong No. 56.

79 Id.

80 Id.

81 Id.

82 Id.

83 Ms. Chen, Hu Yi Zhong Shao Minzhong No. 56.

84 Id.

85 Id.

86 Id.

87 Id.

88 Ms. Chen, Hu Yi Zhong Shao Minzhong No. 56.

89 See Moral Problem! Surrogacy between Lesbians, While Going to Court for Legal Parentage of the Child after Breaking Up, SOHU (Sept. 11, 2020), https://www.sohu.com/a/417743298_120209938 (mentioning the case).

90 Id.

91 Id.

92 Id.

93 Id.

94 See Moral Problem!, supra note 89.

95 Id.

96 Id.

97 Cases are public in general with some exceptions. Article 4 of the Regulations of the Supreme People’s Court on the Publication of Judgments by People’s Courts on the Internet [最高人民法院关于人民法院在互联网公布裁判文书的规定] provides that “judgments made by people's courts shall not be published on the Internet if they fall under any of the following circumstances: (1) involving state secrets; (2) juvenile crimes (3) Closing the case through mediation, except that it is necessary to disclose to protect national interests, social public interests, and the legitimate rights and interests of others; (5) Other circumstances that the court deems inappropriate to publish on the Internet.” The author found this case from news reports regarding its trial court decision and could not find the case from the official website where cases are published by all courts. As for the appellant court decision for this case, the author could not find any information from the official website or any media coverage. The case appealed may be settled and hence is not public.

98 Ms. Zhang v. Mr. Li (Intermediate People’s Court of Shenzhen City of Guangdong Province, Civ. Judgment 2019); see Min Liu, Surrogate Mother Sued for Custody and Court’s Decision (Mar. 19, 2022), https://baijiahao.baidu.com/s?id=1727735756108045651.

99 Ms. Zhang (Civ. Judgment 2019).

100 Id.

101 Id.

102 Id.

103 Id.

104 Mr. Wang v. Ms. Shen (Primary People’s Court of Putuo Dist. of Shanghai, aff’d Second Intermediate People’s Court of Shanghai 2019); see Government of Shantou, Rules on Confirmation of Legal Parentage in Surrogacy under Civil Code: Legal Risks and Disputes Arising out of Surrogacy (Jan. 22, 2021), https://www.shantou.gov.cn/sfj/qwpfzt/qwpfzt/yasfdxpfalk/content/post_1865645.html.

105 Id.

106 Id.

107 Id.

108 Id.

109 Mr. Wang; see Government of Shantou, supra note 104.

110 See Yan Xiong, From the Perspective of Judges: Rules on Confirming Legal Parentage in the Civil Code for Cases of Surrogacy, Second Intermediate People’s Court of Shanghai (Sept. 22, 2020), https://www.sohu.com/a/420168815_697727 (mentioning the case).

111 Id.

112 Id.

113 Id.

114 Id.

115 Ms. Chen, Hu Yi Zhong Shao Minzhong No. 56.

116 See, e.g., id.

117 See, e.g., Mr. Zhang (Civ. Judgment 2019); see also Mr. Wang (2019).

118 See, e.g., Xiong, supra note 110.

119 A Couple v. the Hospital, Chuan 0104 Minchu 1707 (Primary People’s Court of Jinjiang Dist., Chengdu City, Sichuan Province, Civ. Judgement 2020).

120 Id.

121 Id.

122 Id.

123 Id.

124 A Couple, Chuan 0104 Minchu 1707.

125 Id.

126 Id.

127 Id.

128 Id.

129 Disposal of Frozen Embryos of Deceased Couple, Yi Minchu No. 2729 (Primary People’s Court of Yixing, Jiangsu Province, Civ. Judgement 2013).

130 Id.

131 Id.

132 Id.

133 Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

134 Id.

135 Id.

136 Id.

137 Id.

138 Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

139 Id.

140 Id.

141 Id.

142 Id.

143 Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

144 See A Couple, Chuan 0104 Minchu 1707; see also Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

145 The two cases (the case of A Couple v. the Hospital, and the case of Disposal of Frozen Embryos of Deceased Couple) used words “rights-holders” and “rights to disposal and management of embryos” instead of ownership. The author views these rights are essential to ownership, and hence are quasi-ownership rights.

146 See A Couple, Chuan 0104 Minchu 1707; see also Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

147 Id.

148 Id.

149 Id.

150 Id.

151 See Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

152 See A Couple, Chuan 0104 Minchu 1707; see also Disposal of Frozen Embryos of Deceased Couple, Xi Minzhong 01235.

153 Data on Public Opinion of National Urban Residents towards Surrogacy, Guangzhou Public-Opinion Rsch. Ctr. (May 9, 2013), http://www.c-por.org/index.php?c=news&a=shujudetail&id=1736&pid=24.

154 Id.

155 See Data on Public Opinion of National Urban Residents towards Surrogacy, supra note 153; see also Survey on Surrogacy: 70 Percent of Female Oppose While 50 Percent of Male Support Legalization of Surrogacy, CHANGJIANG NET (May 10, 2013).

156 See Why Was the Provision on Prohibition of Surrogacy Deleted from the Population and Family Planning Law, JIHONG JIA LAWYER (Jan. 22, 2021), https://www.lawtime.cn/article/lll114106461114111555oo729372 (mentioning the survey).

157 Id.

158 Do You Think That Surrogacy Should Be Allowed? SINA Med. News (Feb. 21, 2017), https://med.sina.com/article_detail_103_2_20611.html.

159 Id.

160 Id.

161 Id.

162 See Why Was the Provision on Prohibition of Surrogacy Deleted, supra note 156.

163 Id.

164 See Do You Think That Surrogacy Should Be Allowed?, supra note 158.

165 See generally Nectar Gan, Accused of Abandoning Two Babies in the US, This Chinese Celebrity Has Sparked a National Debate about Surrogacy, CNN, Jan. 22, 2021.

166 Id.

167 Yang, supra note 21.

168 Invisible Market of Surrogacy, Finance Ifeng (Mar. 9, 2019), https://finance.ifeng.com/c/7kuQQ8gA8Ym.

169 Cheng Chen, We Need Laws as Tools to Go against Surrogacy, Guangming Daily (Jan. 19, 2021), https://legal.gmw.cn/2021-01/19/content_34555193.htm.

170 See Gan, supra note 165.

171 See Teon, supra note 12.

172 Confucius, Classic of Filial Piety (c. 4th century BC) (a Confucian text written presumably in the early Han Dynasty).

173 Lian Hong, A Study of the Punishment of Kun, Nai, and Wan in Qin and Han Dynasties, 6 J. Ancient Civilizations 67, 72 (2012).

174 Id.

175 Chen Shasha, Chinese Legislator to Propose Allowing Gestational Surrogacy among Specific Groups, Global Times (Mar. 2, 2021), https://www.globaltimes.cn/page/202103/1216975.shtml.

176 Gang Cao, Is Surrogacy Morally Justified? Chinese Ethics Online (Feb. 9, 2021).

177 Lale Say et al., Global Causes of Maternal Death: a WHO Systematic Analysis, 2 Lancet Global Health 323, 333 (2014).

178 See Yaci Liao, A Study on Human Assisted Reproduction and Its Legal Ethics, 22 (China Legal Publishing House 1995); see also Chenhui Gao, Study on the Legality of Surrogacy in the Perspective of Constitution, 5 J. Nanjing Med. Univ. 94, 354 (2019).

179 See Yi, supra note 11.

180 See Ding, supra note 23.

181 Confucius, The Analects of Confucius (论语).

182 Id.

183 Maria E. Shwartz, How Technology Has Affected the Legal System: Great Expectations: The Surrogacy Debate Continues, 34 Howard L.J. 169, 181 (1991).

184 Id.

185 Id.

186 Id.

187 Id.

188 Elizabeth Chloe Romanis et al., Reviewing the Womb, 47 J. Med. Ethics 820, 829 (2021).

189 Id.

190 Id.

191 See Shi, supra note 32.

192 Id.

193 Id.

194 Id.

195 Id.

196 See Shi, supra note 32.

197 Tiantian Gui, An Insight of the Population and Family Planning Law: Why Was Prohibition of Surrogacy Provisions Deleted from Proposed Amendments? Bejing Youth Daily (Dec. 28, 2015).

198 See Civil Code of the People’s Republic of China, supra note 44.

199 Id.

200 Yiying Qiu, What Are the Current Practices of Surrogacy in China?, 3rd Int’l Conf. Future Soc. Sci., Mar. 2021, at 16.

201 Adam Minter, China’s Flirtation with Surrogacy, as the One-Child Policy Comes to a Close, The Sydney Morning Herald (Dec. 31, 2015), https://www.smh.com.au/opinion/chinas-flirtation-with-surrogate-motherhood-as-the-one-child-policy-comes-to-an-end-20151231-glx5hr.html.

202 A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements, Preliminary Doc. No. 3 C of March 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference, Mar. 2014.

203 China Will Continue Combating Illegal Surrogacy, Xinhua News (Feb. 2, 2017), http://www.gov.cn/xinwen/2017-02/08/content_5166558.htm.

204 See Jing Wang, Eggs for Surrogacy, Choice of Gender, Ownerless of Embryos, etc. Infertility Anxiety Has Contributed in the Chaos of Assisted Reproduction, Xinhua Net (Jan. 4, 2019).

205 Id.

206 Id.

207 See Ms. Chen, Hu Yi Zhong Shao Minzhong No. 56. This case has been mentioned by the Supreme Court’s report of 2017 to the National People’s Congress and hence it is likely that courts will give great weight to this case.

208 Id.

209 Id.

210 Id.

211 Id.

212 See Ms. Chen, Hu Yi Zhong Shao Minzhong No. 56.

213 Yongping Xiao, Jue Li, & Lei Zhu, Surrogacy in China: A Dilemma between Public Policy and the Best Interests of Children, 34 Int’l J. L., Pol’y Fam. 1, 15 (2020).

214 See Civil Code of the People’s Republic of China, supra note 44 at arts. 8, 143, 153, 1009.

215 Shi & Zhang, supra note 14.

216 See Xiaoxia Sun & Chunzhen Guo, The Application of Legal Paternalism in China, 1 Soc. Sci. China (2006); see also Wenyi Huang, Paternalism as A Legal Intervention, 5 Chinese J. L. (2010); see also Hershey, Paul Turner, A Definition for Paternalism, 172 J. Med. Phil. (1985).

217 Id.

218 Id.

219 Xiaoxia Sun, Legal Theory of Right to Body: From Right to Body in the Civil Code to Human Rights under New Technology, 6 China L. Rev. 67, 80 (2020).

220 Id.

221 See Civil Code of the People’s Republic of China, supra note 44 at art. 1003.

222 Id.

223 Regulations on Human Organ Transplantation [人体器官移植条例] (promulgated by the State Council of PRC, effective May 1, 2007) allow natural persons to donate organs without any compensation. Article 3 provides that “no organization or individual may buy or sell human organs in any form, or engage in activities related to buying or selling human organs.” Article 7 provides “human organ donation shall follow the principle of voluntariness and free of charge. Citizens have the right to donate or not to donate their human organs; no organization or individual may force, deceive or lure others to donate their human organs.”

224 Id.

225 Mr. Wang v. Ms. Zhang, Sui Zhong Fa Shao Min Zhong Zi No. 168 (Primary People’s Court of Guangzhou Tianhe Dist., Civ. Judgement 2011, aff’d Guangzhou Intermediate People’s Court, Civ. Judgement 2012).

226 Id.

227 Id.

228 Id.

229 Id.

230 Mr. Wang v. Ms. Zhang, Sui Zhong Fa Shao Min Zhong Zi No. 168.

231 Id.

232 Id.

233 Id.