Recently, an microblog called ‘this aunt, why should I call her mother?’ became a hot search. The incident was sparked by Lingling, a surrogate mother, which after giving birth to the baby Tiantian, she regretted and sued the baby’ s father Mr. Wang to court for the custody of Tiantian. In the end, the court sentenced Tiantian to be brought up by wang, but allowed Lingling to visit Tiantian every month with a social worker.
Lingling became a big winner in life which she not only got the surrogate remuneration of a house but also earned a fat son. Comparatively, Mr.Wang who doesn't guard his son is not so lucky. The court's action takes into account both the legal and human feelings, affirms Mr. Wang's guardian status while considering lingling's birth mother identity. Making this judgment is the best arrangement for the healthy growth of Tianian.
This case is only one of the phenomena of surrogacy. The origin of surrogacy is that people attach great importance to the reproductive right and reproductive right is not premised on the existence of fertility. But do you know? On average, one out of eight couples in China is infertile, so in order to get the crystallization of love, many people will take the risk to choose surrogacy.
So here the question comes, since surrogacy is to realize the right to bear, is surrogacy legal?
Sorry, illegal! The measures for the administration of human assisted reproductive technology expressly prohibits the sale of gametes, zygotes and embryos in any form. Medical institutions and medical personnel shall not implement any form of surrogate technology.
Surrogacy not only disturbs China's family planning system, but also are the acts of selling sperm or renting uterus which violate the moral and ethical bottom line. Also! Once surrogacy is legalized, it may become a breeding ground for crimes. For example, keeping a mistress in the name of surrogacy which may cause the crime of bigamy, the crime of abducting and selling children behind the promise of ‘ensuring the birth of a boy’, the crime of abducting and selling women as to create a ‘child-bearing machine’ and the crime of abandonment for abandon an unhealthy child, etc.
In 2016, a 17-year-old girl who sold her eggs selling her eggs as the first criminal case had been charged successfully, in China. Liang, a 17-year-old girl, sold her eggs for 15000 yuan and went to a clinic to extract the eggs accompanied by the staff of the surrogate agency company. The failure of the operation resulted in the rupture of bilateral ovaries and serious injury of grade II which the staff member was finally convicted of illegal medical practice. A young girl lost the right to be a mother from then on. Although Liang is also responsible, what’s more hateful is these bad surrogacy agencies!
In order to eliminate the surrogacy black market, our country has made great efforts in the stage of market supervision and strictly controlled surrogacy agencies. According to the measures for the administration of human assisted reproductive technology, the regulations on the administration of medical institutions and the detailed rules for the implementation of the regulations on the administration of medical institutions, only institutions with the approval certificate of human assisted reproductive technology can carry out artificial insemination services. Pay attention that surrogacy is different from the artificial insemination which means that no matter what institutions are engaged in surrogacy services are illegal!
If an institution without a certificate helps others to surrogate, it may face such penalties as warning, fine, order to suspend business, confiscate illegal income, medicine and instruments, and revoke the practice license of medical institutions; if an institution with a certificate trades in gametes, zygotes, embryos and implements surrogacy technology, it shall be given a warning and a fine of less than 30000 yuan by the administrative department of health, and be given an administrative penalty by the relevant responsible person. If a crime is constituted, criminal responsibility will be investigated according to law.
As for the legal liability of the related subjects of the surrogacy agreement, it is still in the gray area of China's law, but! In 2016, Chen Ying v. Luo Ronggeng' s custody dispute, which was adjudicated in Shanghai Intermediate People's court, was the first custody dispute case caused by surrogacy in China and was included in the Supreme Court report with its excellent human judgment, which created a precedent for the judgment of surrogacy cases and provided guiding opinions~
Chen and her husband Luo, bought other woman's eggs and used Luo’ s sperm, entrust other female to surrogacy and they got twins. Chen regarded them as her own but seven years later, Luo died of illness and Luo' s parents filed a custody lawsuit. The court of second instance classified and discussed the four theories of consanguinity, childbirth, contract and the best interests of children, and finally adopted the ‘childbirth theory’ which is consistent with the position of prohibiting surrogacy in China. That is to say, the puerpera is the mother. Chen has no genetic relationship with the child and she was not the puerperas of the child which she is not recognized as the child's natural mother. However due to the fact that there is upbringing and education between Chen and his children, the Court confirmed Chen as the stepparent of the child, which is the virtual blood parent in the marriage law. According to the principle of the best interests of the child, considering the guardianship ability of both parties, the child’s needs for living environment and emotion, and the integrity of the family structure, the court decided that the custody of the child belongs to Chen, and specially granted the child The grandparents have the right to visit alone.
There are two sentences in the judgment that are still fresh in my memory, ‘We need to clarify that the recognition of the relationship between Chen and his two children as a stepparent-child relationship does not mean that the court affirm the illegal surrogacy…Although the referee is rational and hard, but family affection is warm and soft. In the conflicts and disputes caused by family relations, what is more needed is the gentle solution of family affection, rather than the cold and hard cutting of the referee.’
Surrogacy technology is indeed against the normal human natural reproduction, but it will not result in the subversion of the natural reproduction law. The success of surrogacy technology makes up for the regret that some couples can't have children by natural means which in this respect is a blessing rather than a curse. Law is a practice of continuous improvement, the legislator should keep pace with the times rather than a hasty total ban or completely open, make surrogacy standardized and institutionalized so that this new technology can truly benefit the people and bring the dew of law to all couples who want to have children but can not!
