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Ban on surrogacy excluded from revised Chinese law

The footage run by CCTV shows a client (L) talking with an ovum provider (C) Photo: China Daily

China dropped the ban on finding a surrogate mother from its revised law on Sunday, following the debate by lawmakers of a draft which originally included the ban. But it doesn’t mean surrogacy is legalized in China.

The announcement was made by the Standing Committee of the National People's Congress, China’s top legislature, after a routine group discussion on the draft Law on Population and Family Planning on December 23.

The amendments in the approved draft also include allowing all couples in China to have a second child, which will come into effect on January 1, 2016.

“Surrogacy concerns the reproduction right of every citizen,” said Sun Xiaomei, one of the NPC members. In a 2014 survey of families who lost their only child, Sun found that many such families eagerly wanted the government to help them have a new baby.

She also suggested that there should be more clarifications about surrogacy after it is put in the law instead of an outright ban, such as under what kind of situation the finding of a surrogate mother is legal or illegal and who should supervise such activities.

“If the law outright bans surrogacy, some underground surrogacy organizations will continue to make profit illegally, and those who need surrogacy can also go to countries which allow people to do so. Such factors should be taken into consideration when making the law,” Sun noted.

Ethical risks

Underground surrogacy organizations have survived in the Chinese market for a long time, although Chinese authorities have been targeting surrogacy organizations since 2013, according to a report by infzm.com. Some experts familiar with assisted reproduction technology say that the annual increase in infertility is very likely one of the reasons for the prospering of the surrogacy industry in China.

According to infzm.com, the infertile population in China increased to over 40 million in 2013, roughly 12.5% of the total childbearing population.

In this backdrop, some experts say it is paradoxical to ban surrogacy while the law allows people to have a second child.

While there are two types of surrogacy - the gestational surrogacy in which the child is genetically unrelated to the surrogate and traditional surrogacy in which the child is genetically related to the surrogate, there is still an ethical debate in China: who should be the true mother of the child. The legalization of surrogacy would be a huge challenge for both the law and social value system, experts say.

“Surrogacy means the surrogate mother is responsible for giving birth to the baby. It breaks the tradition where a biological mother is also responsible for bringing the baby up. It will take a long time to make relevant laws to deal with the complex situations, for example, what happens when a client doesn’t want the baby when the surrogate mother gives birth to a handicapped child,” Feng Yun, an expert with the Chinese Medical Association, told infzm.com.

“Many other countries banned surrogacy in the beginning. It’s similar to the process of gradual understanding about contraception and birth control. The concepts will gradually change with the development of our society,” said Liang Zhongtang, an expert with the Family Planning Commission of China.

At a press conference of the Standing Committee of the National People's Congress on December 27, Zhang Chunsheng, head of the legal department of the National Health and Family Planning Commission, said although the ban on surrogacy was not included in the Law on Population and Family Planning, the government would continue its control on the use of surrogate technology, sperm and ovum businesses in accordance with the 2001 Administrative Measures of Human Auxiliary Reproduction Technology and human sperm bank management.

Online debates

On Sina Weibo, China’s equivalent of Twitter, people also have mixed feelings about whether surrogacy should be legalized in China or not.

Some people showed their support.

“I think surrogacy is necessary in China, after all there are many people in today’s society who cannot have a baby out of various reasons. If there are no surrogate mothers, these group of people will have no chance to become parents in their lives,” noted @陈年五花肉.

“I am from a family without a child. We really want to have a baby. We support surrogacy legalization in China to guarantee the rights of both the surrogate mother and people like us,” said @VVVVIIIPPPSUSU.

“If the surrogate mother and the couple who cannot have a baby all agree to do so, what is the reason to ban such a thing?” asked @我是MissShaSha.  

“Stopping someone to find a surrogate mother is no different from depriving her right to reproduce. It doesn’t help to ban surrogacy,” said @超级无敌斑斓大老虎A.

“I am a mother who lost her only child. It is very difficult for a normal person to imagine how hard it is to lose the only child. Only the coming of another baby can draw me out of this state of sadness. Legalizing surrogacy will bring hope to families like us,” remarked @用户5805841386.

Others argued against hiring women as surrogate mothers.

“Surrogacy is not humane at all. It goes against natural law. If people want a baby so much, why don’t they just adopt one, in which way they can also shoulder social responsibilities?” said @夜空下的守望-宸.

“This is definitely a complicated problem, which needs careful consideration,” noted @依然半支莲.

“If the law allows people to find surrogate mothers, perhaps it would be much easier for super rich people to have more babies while not having to keep it secret,” another called @待我长发及踝 remarked.

“Why not just adopt a baby? Perhaps it’s because the rich people want the child with their own blood to take over the family business. It’s just a game for the rich, while it is still a problem for the poor who can neither have babies nor find surrogate mothers,” said @秦汉China.


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