Abstract
The development of surrogacy technology has brought hope to families with reproductive disorders. The current surrogacy regulations show that China has always been strictly against any form of surrogacy, but illegal surrogacy is still widespread. The departmental rule on surrogacy has a legal loophole; it does not clearly stipulate the legal consequences for involved parties who breach the regulation. China has not yet established a mature supervision and implementation hierarchy. The monitoring system for surrogacy is restricted to administrative special rectification; the prevention mechanism and the deterrence effect are not in place. Therefore, this article investigates illegal surrogacy in China, re-examines the current regulatory framework of surrogacy in China from the perspectives of legislation and supervision and suggests some changes needed to deal with the legal challenges posed by surrogacy.
Introduction
In general, surrogacy refers to “a form of family-making, in which a woman becomes pregnant for the purpose of delivering a baby to others who will be the child’s parents”. 1 In January 2021, there was a report that a famous Chinese actress had hired two surrogate mothers in the United States to give birth to her surrogate children. 2 Later it was reported that she wanted to abandon these two surrogate babies because she planned to divorce. 2 This centred public attention on surrogacy issues in China. To raise social morality and promote correct values, the state broadcaster, China Central Television (CCTV), commented that “surrogacy is clearly banned in our country, and its disregard of life makes one bristle with anger”. 3 Three months later, the Chinese central government promptly published a regulatory document – Notice of Issuing China’s Action Plan against Human Abduction and Trafficking (2021 China’s Action Plan) – that re-emphasised the prohibition of surrogacy, claiming that “illegal activities such as surrogacy shall be severely cracked down”. 4 The incident has reawakened public awareness of the issue of surrogacy; do strict restrictions on surrogacy effectively address potential risks of uterus rental? The quick answer is no. The lack of legislation and enforcement provides a hotbed for illegal surrogacy, so it is urgent and necessary to strengthen the regulation of surrogacy in China.
Illegal surrogacy in China
In Chinese traditional culture, procreating offspring is very important. It continues the family. Child-bearing is less popular with the rise of female independence and adoption, but there are still many families who want their own children to maintain harmony in their relationship. 5 Surrogacy and other advanced assisted reproductive technologies raise hopes that they can create children without destroying the entire genes structure of the original family. Surrogacy does benefit mankind to a certain extent by providing opportunities for some couples to have a child; while irrational and improper use of surrogacy technology will result in hidden ethical hazards, threaten social order stability and trigger potential legal challenges. 6
Many people are willing to pay for surrogacy in China. Their reasons vary: they may suffer from reproductive disorders such as infertility, ageing or other medical disabilities, or because they may be afraid of the physical discomfort of childbirth or the negative impact on their careers. 7 Stimulated by the high profits, some women are forced or volunteer to be surrogate mothers, renting their uterus to give birth to a surrogate baby. The existence of demand and supply has encouraged the growth of the surrogacy black market (dai yun hei shi代孕黑市) which has gradually expanded in size, making high profits through matchmaking. 8
In addition, the thought of men’s privilege over women (zhong nan qing nv重男轻女) is still deeply ingrained in China, since male family members can contribute to the continuity of a clan. If the child is female it might be aborted. Males are preferred. Moreover, the baby may be unclaimed or abandoned (dai yun qi yang) if it is not as hoped for or if circumstances change. 9 For example, if the baby has physical defects or the intended surrogate parents break up or divorce. 9 If these problems are not properly handled and adequately supervised, the dignity of the law and social harmony will be breached. The regulation of surrogacy needs to be rapidly improved to deal with the issue and ensure that it upholds keeping with the law-abiding society in China.
Legal framework of surrogacy regulation
Legislation
Although attitudes to surrogacy vary from country to country, most countries consider commercial surrogacy illegal, as does China. 10
The regulations on surrogacy in China consist of departmental rules. These demonstrate that China firmly opposes and completely prohibits surrogacy. The principles of China’s surrogacy regulation are contained in the Measures on Administration of Assisted Human Reproduction Technology (2001), and states: “Buying or selling gamete, zygote, and embryo by any means shall be prohibited. The medical institutions and medical personnel shall not carry out any form of surrogacy technology.” 11 Medical organisations that breach this regulation are punishable by administrative sanctions or criminal penalties. 12 This regulatory document clarifies its attitudes toward surrogacy without providing specific measures to punish it. This means that there are technical obstacles when applying it to actual practical situations. In addition, it only specifies the liabilities of medical institutions and their personnel, but is silent on the legal consequences for other involved parties such as the surrogate intermediaries, the surrogate mothers and intended parents, who benefit from this legal loophole. 13 Existing laws do not specifically target those involved with penalties or sanctions. Even if they are caught, there may be no further punishment. So many involved parties do not consider they have done anything wrong and continue behaving in ways that endanger other people’s lives.
At present, the surrogacy regulatory framework lacks coercive power, which causes difficulties in enforcement. Since the current legislation is only based on departmental rule, the level of authority is limited to the level of the competent department rather than the national legislature. Therefore, violations of the rules are only subject to administrative sanctions instead of criminal punishment. 14
Thus, it is necessary to formulate surrogacy-related laws by clearly defining the relevant liabilities of involved parties and measures to enforce the law. The regulation should be consistent with that applicable by other relevant department law, such as the Civil Code, Administrative Law and Criminal Law on surrogacy. All the other departmental laws should actively cooperate with each other to implement anti-surrogacy regulation so as to form a complete regulatory mechanism.
Supervision
The existing enforcement in response to the current surrogacy regulation mainly relies on the special campaign (zhuan xiang xing dong专项行动). Two more departmental rules emphasised a firm determination to “crack down on surrogacy” in 2017 and 2021, respectively. 15
These have made good progress in breaking up surrogacy dens in some local places. For example, Wuhan city formed a joint investigation group to carry out an investigation and suppressed an illegal surrogacy den in July 2014. 16 Then the hospital involved was sanctioned with revocation of the professional qualification of the doctors involved. 16 In April 2015, another nationwide special campaign was launched to crack down on surrogacy. 17 This focuses on the investigation and punishment of medical institutions, medical personnel, intermediaries and other parties involved in surrogacy, and supervises human-assisted reproductive technology services. 18 Guangdong, Hainan, Shanghai and other provinces have also launched local special campaigns in response to the central government’s call for rectification. In April 2021, 2021 China’s Action Plan authorised the National Health Commission, the Ministry of Public Security and the Ministry of Civil Affairs to crack down further on surrogacy and other illegal activities. 19 Enforcement of anti-surrogacy law in China is mainly implemented through special action against surrogacy.
Although surrogacy is banned in China and special campaigns have been launched to crack down on it, this grey area cannot be eradicated entirely and surrogacy sectors still exist in some places. 20 Besides, there is insufficient legal aid in the follow-up stage after a special campaign is over. This does not help to promote the stability and security of good social order.
As these special campaigns are based on the internal communications between departments, no “binding rules of general application” have been developed for further supervision of or enforcement regarding illegal surrogacy. 21 In the absence of a legal ground, a crackdown on surrogacy cannot be carried out spontaneously by the police. Instead, it relies on a command from the top which is sent for administration to a lower level. This reduces its effectiveness. Surrogacy regulations should allow for routine checks with a monitoring system that works for and answers to the public. Therefore, it is necessary to amend the existing laws (especially the criminal law) or formulate a special departmental law on surrogacy and to establish the legal basis for cracking down on illegal surrogacy.
With limited emphasis on prevention and control, regulation in China often lags behind technological progress, so curtailing illegal surrogacy in advance is more effective than cracking down on it later and would prevent or limit the existing surrogacy black market. 22
Conclusion
Science and technology in themselves are not culpable; the harm or benefits are governed by the way they are used. The progress in surrogacy technology has brought hope to families with fertility difficulties; from a scientific standpoint, a small step in the development of surrogacy technology is a big leap in human-assisted reproduction technology. However, without firm controls, it is likely to be used by criminals and harm society. In particular, surrogacy technology itself is not bad, but when driven by profit without ethics, a surrogacy black market, and on some occasions the illegal abandonment of babies, results. 23
The application and potential damage that may result from science and technology are not irreconcilable contradictions if proper legal controls are in place and allow technology to be used in a way that benefits human beings and society.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.