he first serious question to be debated on and offline after Chinese New Year was how to have a second baby, a practice that used to be banned or restricted but is now encouraged. The debate was triggered by an article in the People’s Daily, the Party mouthpiece, on February 3, which broke the taboo of talking about the possibility of allowing even noncommercial surrogacy. However, five days later, the National Commission of Health and Family Planning declared they would continue “punishing surrogacy severely” under the existing rules about assisted reproduction put in place by its predecessor, the former Ministry of Health, in 2001.
This rule has become increasingly controversial as the surrogacy market has been growing fast in recent years, especially since the second child policy was announced at the end of 2013 and brought into effect for qualified couples– initially that only one parent had to be a single child him or herself from 2014 and then widened to all couples at the beginning of 2016. At the end of 2015, the ban on surrogacy was deleted from the revised Population and Family Planning Law. This has fueled the call by experts for the legislating of a separate law on assisted reproduction to replace the ministerial rules and to relax the ban on unpaid surrogacy on a medical basis.
Surrogacy was practiced and even promoted in public hospitals in China before 2001. It then became controversial and aroused concerns over technical, ethical and management risks. Many ethicists, legal professionals and reproduction experts joined the discussions during the process of the formulating of the rules on assisted reproduction. Given those concerns and the strict implementation of the one-child policy at that time, they reached a consensus on a sweeping ban on all surrogacy, even in public hospitals.
As more couples became aware of fertility problems as testing improved and private surrogacy became a booming business in the following years, the national health authorities began to consider the revision of the 2001 assisted reproduction rules. Although some experts providing consultancy advised the allowing of non-commercial surrogacy on a medically necessary basis, the conclusion of the discussion was to maintain the ban due to the same concerns as before.
Since the ban was imposed, crackdowns on surrogacy have been repeatedly launched by ministries and local governments. However, as the rules are formulated by a ministry, not legislators, and apply only to medical practitioners registered with the ministry, it is difficult to enforce them in the gray area of the private surrogacy market. In one 2013 action against misconduct in assisted reproduction, a chain of plastic surgery clinics under a Hong Kong-based company was found to be providing surrogacy services. However, it refused to accept the inspection of local health authorities in Beijing because it was not a “medical institution.” It got away with a fine of less than US$4,350 from the Industry and Commerce authorities for doing business not registered on its business license.
Even local governments have adopted different attitudes towards the policy. In January 2015, the Guangdong provincial government launched a one-year crackdown on surrogacy service providers after a report into the sector by the national broadcaster, China Central Television.At the end of the year, legislators in Jiangsu Province deleted the surrogacy ban from the amendment of the local rules on implementing China’s Maternal and Infant Health Care Law on the grounds that the issue of reproductive rights of citizens should be subject to national legislation. This contrast between the two provinces shows how the lack of a national law concerning the ban has led to a murky situation in surrogacy for practitioners and prospective parents alike.
The reality at the individual and market level is much more complicated than the rules on paper would suggest. “In truth, the surrogacy ban only stops couples who cannot afford to go abroad; for those who can, the way out is just a matter of air tickets,” Gong Xiaoming, co-founder of the Beijing-based WOYI Ob/gyn Medical Group and a former ob/gyn doctor with the Beijing Union Medical College Hospital.
As a doctor, he has witnessed and helped many desperate couples over the years. One of his patients had no womb from birth. When she and her husband asked for Gong’s help, Gong suggested they find a surrogate mother in Thailand. However, right after the couple paid nearly US$30,000 for an agent, Thailand banned any surrogacy for foreign couples in 2015 as a result of two child abuse scandals that emerged in August 2014. Without enough money for surrogacy services in the US, the couple sold their apartment and began to resort to domestic underground surrogacy clinics which are poorly equipped and offer no legal protection.
In a proposal to the annual national session of the People’s Congress in 2014, China’s legislative body, Gong and fellow experts on obstetrics-gynecology called for allowing noncommercial surrogacy for patients with medical problems. However, there has been no response to this proposal.
Gong has helped about 10 couples pursue surrogacy in the US, the Philippines, Russia and Cambodia. He believes that compared with the gray area of the domestic market, pursuing surrogacy in countries where it is legal and the risk of legal disputes over parental rights is much smaller is the better option.
Concerns for the possible abuse of surrogacy have always overshadowed the debates on relaxing the ban. The US is the favorite for rich Chinese couples, a perfect solution for their dream not just of having a baby, but a baby with US citizenship. Agencies providing this service promote their services online. The firm AA69, for example, claims that it is the leader in this business and has been very successful since it was set up in California in 2004. “US$290,000 for a surrogate baby in the US,” says the banner on its website. Lü Jinfeng, chairman of the company, is a media regular for interviews on surrogacy. Pangbaba.com, another agency providing surrogacy in the US, recommends a list of US hospitals on its site and even posts pictures of its clients’ surrogate babies on its Sina Weibo account, China’s equivalent to Twitter.
Lü was described as “unscrupulous” by Zhai Xiaomei, director of the Center for Bioethics at the Chinese Academy of Medical Sciences, in an interview with NewsChina. Zhai is a firm opponent of commercial surrogacy. She does not think that society is ready for the social, ethical and legal challenges brought about by the artificial manipulation of a process that is supposed to be natural, including the separation of sex and reproduction.
One of the problems that she is concerned about is a market for gestation where women’s reproductive organs would be used as a machine for producing and processing babies, making babies the products of the machine. Poor women in this scenario would make a living by providing their bodies and products of the body for the rich. The precondition for any use of assisted reproduction Zhai told NewsChina is that “it does not worsen social inequality; it has to bring more benefits than harm; it should never lead to the result that the poor become a resource to be exploited by the rich.” Her concern is typical among experts holding a cautious attitude towards surrogacy. However, Zhai also supports legislation in the form of a national law on assisted reproduction and a proper relaxation of the surrogacy ban when medically necessary with no commercial interests involved.
The debates on the surrogacy ban may continue and even heat up for some time. One thing seems to be sure for now. For both proponents and opponents of the ban, the creation of a clear law on surrogacy should be firmly on the national agenda.