The news that Zheng Shuang had a son in the USA by surrogacy came as a shock on the internet in the afternoon of 18 January 2021. Her former boyfriend Zhang Heng admitted he was taking care of the two “babies” in the USA and a friend of his showed media two birth certificates of the children, on both of which the mother’s name was “Shuang Zheng” and the father’s name was “Heng Zhang” and said Zhang Heng and the children could not return home because Zheng Shuang was “uncooperative” to deal with legal formalities.    

Two audio recorded talks allegedly about how to “abandon” the children between Zheng Shuang and her parents and Zhang Heng and his parents appeared on the internet, which was soon followed by strong public criticism for her “surrogacy and abandonment of her children”.    

“Surrogacy”, a questionable term in law suddenly became the aim of criticisms in the aggressive online campaign against Zheng Shuang. A national online discussion of the legality of surrogacy began.   

Most people believe surrogacy is unlawful and some of them even believe Zheng Shuang should be in prison. However, that issue was so complicated that an enormous number of people participated in the discussion. Would “interests of vulnerable women” be fully protected if it is simply decided that “surrogacy is unlawful” and “surrogacy must be banned”?

Surrogacy is related to very complicated ethical and legislative issues. Mainstream opinions in the world are for banning surrogacy. The USA adopted by Zheng and Zhang is one of the few countries where commercial surrogacy is legalized. Surrogacy is explicitly allowed only in states of California, Connecticut, Delaware, Maine, Nevada. There are no surrogacy related laws in other states of the USA, part of which even has a ban on it.      

The two birth certificates accessible on the internet showed the two children of Zheng Shuang was born in Nevada where surrogacy was allowed by law and Colorado where surrogacy was not explicitly allowed or banned.

Chinese legal provisions relating to surrogacy include:

1. Article 3 of the Assisted Reproductive Technology Management Rules issued by the former Ministry of Health in 2001, providing that medical institutions and staff shall not apply any surrogate pregnancy technology;

2. Item (5), Chapter 3 of the Assisted Reproductive Technology Management Standards issued by the former Ministry of Health in 2003, providing that assisted reproductive technology application staff shall not apply surrogate pregnancy technology;

3. Article 5, Item (3), Chapter 1 of Ethical Principles of Assisted Reproductive Technology and Human Sperm Bank issued by the former Ministry of Health in 2003, providing that medical staff shall not apply surrogate pregnancy technology.

The above provisions that prohibit surrogacy apply to medical institutions, medical staff and technology application staff. There are no direct prohibition or punishment rules applicable to other persons in the surrogacy industry such as persons commissioning surrogacy, surrogates (surrogate mothers), sperm and ovum donors and agents.

Zheng Shuang and Zhang Heng who commissioned surrogacy did not violate local laws of the US or Chinese laws.  

The attitudes of Chinese legislators towards surrogacy are thought provoking. In 2015 the state council passed the Amendment to the Population and Family Planning Law of the People’s Republic of China (Draft), which includes a “complete ban on surrogacy”. In the Amendment to the Population and Family Planning Law of the People’s Republic of China promulgated in 2016, the ban is not included.   

The law might be originally intended to meet needs of people who really need surrogacy such as families with no child alive or infertility.    

In 2014 before the promulgation of the Amendment to the Population and Family Planning Law, the Intermediate People’s Court of Wuxi City dealt with a case of an infertile couple Shen with 4 inseminated embryos cultivated by assisted reproduction in Nanjing Drum Tower Hospital dead in a car accident days before the operation and parents of the couple Shen asking the hospital to give back the embryos, causing a dispute over ownership of the embryos with the hospital.   

The hospital claimed the couple’s parents had no right to inherit the embryos on the ground that “the Ministry of Health did not allow sale and free transfer of embryos and banned surrogacy”. The court held that the provision was intended to regulate medical institutions and staff with assisted reproduction technology and could not be used against rightful interests of parties involved and ownership of embryos was so special that it should be decided by considering various factors such as ethics, emotion and protection of special interests.  

Wuxi Intermediate People’s Court finally decided the inseminated embryos were under common control of the couple’s parents. The four old people had their granddaughter by surrogacy in 2017 .

The decision made by the court knowing the old persons would use the embryos for surrogate pregnancy showed the court acknowledged part of the needs for surrogacy in this extremely special case.

It is four years since the child was born due to the decision. In these years the Amendment to the Population and Family Planning Law promulgated did not improve the surrogacy industry chain in the absence of legal regulation because of the awkwardness and complexity of the current situation.

First, the needs for surrogacy will not disappear even if it is found as unlawful. Infertile couples has increased from 10% to 15% in China over recent years. In many cases, if the wife of a couple is infertile, the couple, if rich enough, has to choose surrogacy. With huge demand for surrogacy, a “black market” came into existence naturally.

There are approximately over 400 surrogacy agents in China that provide “one stop services” for clients covering oven abstraction, embryo transplant, pregnancy, delivery and preparation of child birth documents. The cost of surrogacy ranges from RMB 400,000 to RMB 1,300,000, depending on contents of services (for example, a guarantee on a baby boy or a healthy baby).

As on any other “black market”, there is no protection system for interests of people who pay absurdly high prices.

Subject to the above legal provisions and for ethical reasons, courts normally find surrogacy agreements invalid on the ground of public policies and good customs. Once a dispute arises between a surrogacy agent and its client from, for example, disappearance of the agent with money, the client can not protect their interests legally because any surrogacy agreement is not protected by law.

Moreover, as medical institutions and staff are not allowed to apply surrogate technology, many surrogate operations are performed in non-standard medical conditions posing health and safety risks to surrogate mothers and foetus.  

Not long before the explosion of the news that Zheng Shuang had children by surrogacy, another news aroused concerns that a surrogate mother attacked syphilis in her surrogate operation and her client “withdrew the order”, but she insisted on giving birth to the child and sold the child’s birth certificate because she was badly off, leaving the child without valid residence.  

Apart from people who really need it, another reason for the existence of such a large underground market is the cost of the law violation. Subject to Article 22 of the Assisted Reproduction Technology Management Rules, in case of illegal application of surrogate technology, the health department of the government of the province, autonomous region or municipality directly affiliated to the central government should give a warning and a fine of less than RMB 30,000 and an administrative action against the responsible person; and in case of a crime, criminal responsibility should be pursued.

For illegal surrogacy that is not a crime causing serious results, for example, injuries, deaths or serious property damage, a fine of less than RMB 30,000 is normally given. The penalty is extremely small considering huge profits from surrogacy. No wonder so many medical institutions and staff take that risk.   

Whether surrogacy should be legalized is a controversial and difficult legislative issue. In some countries, for example, Ukraine, it is completely lawful, while in other countries, there are a ban on and severe punishment for it. In French laws, surrogacy is completely banned, associations or doctors who have organized or planned for surrogacy will be given a three-year imprisonment and a fine of 45,000 euros and surrogate children born in foreign countries and biologically related to French couples cannot have French citizenship. Children born by surrogate mothers in foreign countries can easily get Chinese citizenship and permanent residence when they return China.    

The crux of surrogacy related laws of our country is that relevant provisions are hardly useful to decide whether “surrogacy is illegal” due to limitations of the law application and absence of regulatory and punishment rules. When more and more people are involved in surrogacy, their interests could not legally protected at all.   

Our urgent needs at this moment are to work out an approach to the current difficult situation and accelerate the legislative process rather than criticize people for surrogacy. Am I right?