Uterus rental: Regulating surrogacy in China

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.

The status of surrogacy in China

“…Second, since some surrogacy agencies offer parents the option of choosing a baby's sex, Chinese parents would be inclined to select boys in the traditional belief of "valuing men over women," leading to an imbalance in the gender proportion in the long run and exacerbating conflicts of gender bias. Third, surrogacy would spur crimes such as prostitution, trafficking, and entrapment of women and children (48,(54)(55)(56). Unscrupulous groups may rely on "scarce technology" to reap exorbitant profits.…”

“…Fourth, the unregulated underground surrogacy market lacks industry standards and technical regulations, resulting in a harsh medical environment and conditions, physical defects, and infectious diseases (24,58). Surrogate children who have congenital illnesses may be abandoned after birth (56). A rampant underground market in surrogacy will negatively affect the government's oversight of the medical sector (59).…”

“…This has sparked a debate over surrogacy contracts. Most scholars believe that the judge's ruling on "public order and good customs" is unjust based on the judge's personal views (56). In Hong Kong, a surrogacy agreement is permitted and must be signed voluntarily, which can protect both parties' lawful rights and interests (63,65,66).…”

“…Two factors may explain this. On the one hand, the Chinese mainland lacks universal legal restrictions and long-term administrative supervision over the complex market environment, and especially transnational surrogacy (56,68). That said, compared to the illegal benefits of surrogacy, the punishment imposed by the special campaigns is negligible, contributing to the lack of legal oversight on surrogacy agencies (29).…”