A lawsuit brought by a single woman denied the right to freeze her eggs has reignited the debate over women’s reproductive rights and how much control the State should exercise over them
On December 23, women and girls flocked to a courthouse in Chaoyang District, Beijing, to support Xu Zaozao (pseudonym), who in a landmark case was suing a Beijing hospital for refusing to freeze her eggs.
“I don’t represent just myself, but all single women like me,” media reported Xu as saying in court.
Xu, a 31-year-old single woman, decided to sue Beijing Obstetrics and Gynecology Hospital of Capital Medical University (BOGH), after the hospital informed her that it was not allowed to freeze eggs for single women. Xu accused the hospital of discrimination. Her case hinges on whether the hospital has “infringed the general right of personality.”
After 35, women’s fertility starts to decline. The procedure to retrieve and freeze eggs has been widely accepted worldwide since it was first clinically used in the 1990s, but China refuses to allow single women to access any assisted reproduction technologies, including egg freezing. However, all men are allowed to donate and freeze sperm.
As more women in China are either choosing to stay single or marry late, the ban on accessing assisted reproductive technology is being increasingly challenged.
Preserving Fertility
Xu said she first thought of freezing her eggs in 2018, when a breakup coincided with a promotion at a new media company. Aware that from a medical perspective, she was already at peak reproductive age, she did not want to be rushed into marriage and parenthood.
“I don’t want a child now, but I worry that one day when I change my mind, I won’t be in the best physical condition to have a baby. So I want to keep my eggs at their best, or in other words, I want to preserve my fertility at its best,” she told NewsChina.
Before turning to BOGH, Xu approached other hospitals in Beijing, only to find that most would not even let her register as a patient because she was not married. BOGH was the only hospital that accepted Xu, with doctors performing tests to see if she was a good candidate to have her eggs frozen. But despite the positive results, in the end the hospital balked at performing the procedure.
Their rationale was based on China’s Specification of Assisted Reproduction Technologies on Humans issued by the former Ministry of Health (MoH) in 2001, which forbade any hospital or medical facility from using assisted reproduction technologies on single women or any couple that violated State family planning regulations.
For these reasons, many Chinese celebrities have already turned to overseas facilities for the procedure. It first became common knowledge in 2015 when popular actress Xu Jinglei said that she had undergone a procedure in the US two years before at the age of 39, when nine of her eggs were retrieved and frozen.
Xu Jinglei described it in an interview with Chinese lifestyle magazine Vista at the time as being “The world’s only remedy for regret.” She said it would give her a chance to have a baby one day when she started to feel regret over not having married, although she is reportedly in a long-term relationship.
Despite the furor the interview caused, with people arguing for and against a woman’s rights over her own fertility, many female celebrities later admitted that they too had either undergone the same procedure outside the Chinese mainland, or were considering it.
In an interview with NewsChina in 2016, a private Taiwanese hospital revealed that 70 percent of their clients for egg-freezing were mainlanders, and consulting companies started to be set up in the mainland to advise clients on where they could access the procedure. One such company told NewsChina that the price for going to the US for the egg-freezing procedure was more than US$16,000 in 2016.
The Debate
According to Xu Zaozao, in the same way she was turned away from several hospitals, a number of courts refused to accept her case. It was not until her lawyers finally changed the charge from one of a medical dispute to “infringement of the right of personality” that a court in Beijing agreed to hear the case. Given that China allows single men to freeze their sperm, her lawyers said that BOGH’s refusal violates the principle of gender equality stated in China’s law on protecting women’s rights.
“My appeal is very simple. Give reproductive rights back to us single women,” Xu said.
Her words were supported by sexologist Li Yinhe who posted on Sina Weibo that freezing eggs is a “normal social demand.” Li also publicly supported Xu Jinglei in 2015, saying that marriage and reproductive rights are two separate things.
The case also drew the attention of demographer Liang Jianzhang who pointed out in a recent article published on Sina News that the biggest benefit of assisted reproduction technologies is to extend the period when women can bear children, and the government should help women realize their wish of being a mother.
According to Liang, China’s ban on single women freezing their eggs likely stemmed from its previous family planning policy, which only allowed each couple to have one birth. Now under pressure from a declining birthrate and an aging population, the government has already eased the restrictive policy, allowing couples to have two births. Since not as many couples have decided to have a second pregnancy, many feel that the prohibition on single women from accessing assisted reproductive technologies seems even more unreasonable.
Those opposed to lifting the ban insist that people who support lifting it are selfish as they will be potentially depriving a child their right to grow up in a two-parent family. It may bring about social problems, such as the identification of a child’s father and the ownership of the frozen eggs if the mother dies.
“Single women’s reproductive rights are neither supported by law nor conform to traditional customs and we also have to consider the rights and interests of children,” wrote the former National Commission of Family Planning (NCFP) in reply to a question on single women’s reproductive rights posted on its website in 2017.
These ideas were presented by BOGH’s lawyer who, according to media reports, argued in court that allowing single women to have children would lead to more education problems related to single-parent families, and ethical problems such as illegal businesses surrounding surrogate pregnancies and egg sales.
Possible Changes
Xu Zaozao, however, brushed aside these concerns, saying that addressing any perceived problems over single parents should not come at the cost of depriving single women of their reproductive rights. “Not every married couple can have a child, and divorce leads to single parents,” she said. “Moreover, many single women don’t intend to have a child out of wedlock, but just want to keep their best eggs if they decide to marry late,” she added.
Jilin Province in China’s industrial northeast was the first and only province to stand on the side of single women. In 2002, the provincial government issued a local regulation on family planning, allowing any single woman at or above marriageable age to have one child with assisted reproduction technologies. Li Yinhe told China Youth Daily at the time that Jilin’s regulation was based on a female intellectual’s appeal to have a child without getting married. Local lawmakers reportedly had fierce arguments around the bearing and raising of these children, but they finally agreed that no woman should be deprived of her reproductive rights. The issue was that a local regulation was legally inferior to that issued by the NCFP, which made the former unenforceable. According to the NCFP, no woman had applied to freeze her eggs in Jilin after the pioneering regulation was issued.
Lawyers that supported Xu Zaozao told media that the former MoH’s regulation went against the superior Population and Family Planning Law which states that “citizens have reproductive rights” and that although no laws support single women from accessing assisted reproduction technologies, neither do they expressly forbid it. Based on the principle that “absence of legal prohibition means freedom,” no department should possess the right to ban single women from assisted reproduction technologies.
According to a 2018 China Daily report, Shanghai lawyer Li Jun had suggested the NCFP lift the ban on single women’s use of assisted reproduction technologies. The NCFP gave a similar response to that in 2017, but pledged that they would undertake more research to reach larger consensus among lawmakers and improve the existing legislation.
At an informal press conference following the adjournment of her case, Xu told media that the case was harder than she imagined, but she hopes it would lead to more debate about single women’s reproductive rights and thus promote revisions to China’s laws.
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