Wang Qian of sina finance
The surrogacy and abandonment of Zheng Shuang and Zhang Heng became the biggest “thunder” in the entertainment industry and the whole society in early 2021, which almost led to the fall of half of the domestic network.
In the turbulent wave of public opinion, surrogacy topic has been pushed into the spotlight again.
Although some countries, such as the United States, allow surrogacy, but our country adopts the attitude of absolute prohibition of surrogacy, any form of surrogacy technology is not legal in our country. As the people’s daily Xiake island said, “surrogacy is illegal! It’s not discussed. ”
A lawyer familiar with the field pointed out to sina finance that according to Article 3 of the measures for the administration of human assisted reproductive technology issued by the Ministry of health of the people’s Republic of China, “it is forbidden to trade gametes, zygotes and embryos in any form; medical institutions and medical personnel shall not implement any form of surrogacy technology.”. For the institutions that carry out illegal surrogacy business, they will be subject to administrative penalties such as fines, suspension of business, confiscation of illegal income and so on. In serious cases, their “medical institution practice license” may be revoked. If the case constitutes a crime, they will bear criminal responsibility.
Although surrogacy is a legal forbidden area in China, the underground market of surrogacy in China is quite prosperous, which is also a public secret. Especially in China’s coastal areas, stimulated by the strong market demand, surrogacy “black market” has formed a mature industrial chain.
According to the lawyer, there are two typical forms of surrogacy: one is to transfer the fertilized eggs or embryos bred by the entrusted husband and wife through artificial insemination into the womb of the person who voluntarily surrogates his wife for pregnancy; the other is to artificially inject the semen of the entrusted husband and wife into the body of the person who voluntarily surrounds his wife for pregnancy to replace the way of sexual intercourse It’s genetically related to children.
What kind of people will choose surrogacy? It is generally believed that the main clients of surrogacy agencies are couples with reproductive difficulties, or those who are deeply influenced by traditional ideas. But in fact, in recent years, more and more working women are actively stepping into this secret market.
CCTV “society and law” channel program screenshot
Why do working women become surrogate clients?
Junjun (pseudonym) is a “Hong Kong drifter”. She has studied and worked in Hong Kong for more than ten years from the mainland. She has established a family in Hong Kong and has a daughter. In the eyes of the outside world, Junjun has a successful career and a happy family, but she also has her own troubles. More than two years ago, due to the arrival of his son, Junjun encountered a “frozen period” in the workplace, and his position was in danger. After many efforts, she managed to gain a firm foothold in the original company.
After the “earthquake” in her career, although Junjun and her husband are looking forward to the second child, she is also worried about losing her hard won career. In the second half of 2020, an acquaintance recommended Shanghai surrogacy agency to her, so Junjun and the domestic surrogacy underground market have an intersection.
After several exchanges, the intermediary agency sent Junjun a “XX medical customer consultation form”. This consultation form shows that the agency can offer different types of surrogacy programs:
The first is “husband and wife embryo find surrogate mother”, which is only responsible for the transfer of the husband and wife’s fertilized eggs or embryos to surrogate mother. The scheme states that “the success rate of tube transfer is not guaranteed to be 100%. If it is not successful, the fee paid by Party a will not be refunded. Please consider it and make a decision.” The price is about 500000 yuan (RMB, the same below);
The second is “company package success package” (no gender requirement for donation), “provide a baby without gender requirement to the client within two years at the latest”, with a price of about 700000 yuan; the third is “VIP company package for boys (girls)”, which has no detailed description, with a maximum price of 1.2 million yuan. In addition, if the pregnant party gives birth to twins by caesarean section, the client will have to pay 150000-250000 extra to the surrogate agency.
One of the solutions provided by “XX medical customer consultation form”
The agency stressed that clients need to bear all the risks associated with pregnancy, such as non implantation of embryo transfer, fetal heart failure after embryo implantation, stillbirth (biochemical), abortion and premature delivery. At the same time, the intermediary structure also noted that “because of the limitations of IVF technology, we can’t guarantee 100% success in making the ordinary package. If it doesn’t succeed, the company will not refund all the fees paid by the customer. Please consider it carefully before making a decision.”
“Shanghai, Guangzhou and Sanya all have such organizations, which are basically introduced by acquaintances.” Jun Jun said that compared with domestic illegal surrogacy agencies, the quotation of legal surrogacy agencies outside the United States and India is more expensive. But the price is not her main consideration. “Looking for surrogacy is to save time. These institutions in the United States have to stay for a few months, and it doesn’t make any difference.”
It is unrealistic for Junjun to spend a lot of time on the transnational journey in order to surrogate her.
For example, surrogate mothers come from all over the country and most of them come from poor families. How can intermediaries ensure the health of surrogate mothers? In this regard, Junjun said that all surrogate mothers she knew had children, and their food and housing were taken care of by intermediary agencies. She believed that the physical quality of surrogate mothers “should be no problem.”. If the child is found to have a disease after birth, will the intermediary be responsible? Jun Jun said, “I understand that I won’t be responsible. This child has nothing to do with them since it was born, and the relationship between disease and gene can’t be proved.”
Although she had “intention” for a time, Junjun didn’t make up her mind to sign an agreement with the surrogacy agency. The reason is that she didn’t have a deep discussion with us. However, Junjun told us that she has friends who get their babies through surrogacy, and also friends who are considering surrogacy. All these friends are working women, and choosing surrogacy is mainly because they are worried about the impact of fertility on their current work.
Junjun’s story may represent the mentality of some working women. Although surrogacy is now regarded as a kind of “reproductive exploitation” and materialization of women, working women, as a middle-class group in the social pyramid, also face the workplace crisis and invisible discrimination brought by childbirth. Under this anxiety, some of them eventually become the trading partners in the underground market.
According to the “observation on the living conditions of working women in 2020” released by boss in the end of 2020, 88.8% of married women without children have been asked about their family planning in the process of job hunting. When this group decides whether to have a child, the most important consideration is “longer pregnancy and childbirth may affect career promotion”, accounting for 38.8%.
At the same time, 85% of women who have already had children believe that childbearing does affect their promotion to a great extent. Thirty percent of the women who have already had children have been struggling for a long time to tell their superiors when they found out that they are pregnant, and 35% of the superiors start to recruit replacement candidates as soon as they know that their subordinates are pregnant.
Surrogacy transaction in legal vacuum
Of course, it needs to be clear that if Junjun chooses the surrogate agency in Shanghai, the agreement she signed with the agency or surrogate mother will not get any protection from the law.
As shown in the figure above, illegal surrogacy agencies sign surrogacy agreements with clients. The agreement generally stipulates that surrogacy is voluntary, the way of surrogacy, the surrogacy agency and the surrogate mother guarantee that their children are healthy children, the surrogacy fee, the term of the contract, the liability for breach of contract, etc.
However, uncle fashan, a well-known law firm, told Sina. Com that according to the relevant provisions of the law, contracts that violate the mandatory provisions of laws and regulations are invalid. In this case, because the “human assisted reproductive technology management measures” explicitly forbids surrogacy, the surrogacy agreement signed by the pregnant person, surrogate institution and surrogate mother may be deemed invalid by the court.
At the same time, because the contract itself may be deemed invalid, if the newborn born under the illegal surrogacy has major disease defects, the pregnant person will also be difficult to investigate the liability of the surrogacy agency.
The short film “baby” directed by Chen Kaige tells a story about illegal surrogacy
The lawyer who is familiar with the surrogacy field provided us with a case: in a case concluded in Guangdong in 2020, the plaintiff Yin signed the standard surrogacy agreement with the defendant ou and his company, and Ou paid a surrogacy service fee of more than 590000 yuan according to the agreement. However, the surrogate baby provided by ou and his company is a non healthy high-risk baby at birth, and only survived 57 days. Yin paid a huge amount of medical expenses for the production of surrogate mothers and the treatment of high-risk infants. Yin then sued ou and his company, demanding the return of service fees and compensation of 1.2 million yuan.
In the end, the court held that the surrogacy contract signed by Yin and ou and his company violated public order and good customs, and was deemed invalid according to law. The three parties who signed the contract, as persons with full capacity for civil conduct and ordinary commercial subjects, knew that the surrogacy behavior was contrary to China’s traditional social ethics, marriage and family, and public order and good customs, still illegally signed and actively performed the surrogacy agreement, which was harmful to the contract The invalidity has the same fault and should bear the same responsibility.
In view of the fact that Yin, ou and their company have actually fulfilled the agreement, the loss of the surrogacy service fee paid by Yin should be compensated according to the fault degree of the parties. The court held that Yin should bear 50% of the responsibility on his own, and ou and his company should bear 50% of the responsibility together. For the medical expenses paid by Yin, ou and his company should also bear 50% of the compensation liability.
It is worth noting that there are “loopholes” in China’s current laws in the field of surrogacy, and there is room for further improvement.
Uncle fashan pointed out that for newborns born under the circumstances of illegal surrogacy, the parents on the birth certificate may generally prevail. Specifically, in practice, the court will integrate various factors to make judgments in favor of children. This means that the clients of the agency are most likely to obtain the legal custody and custody of the newborn.
In addition, the current law of our country does not clearly stipulate the legal liability of pregnant women and surrogate mothers, so it is difficult to pursue their responsibility. However, for the medical staff who illegally carry out surrogacy, if the circumstances are serious, they can be investigated for legal responsibility for the crime of illegal medical practice.
For “Junjun”, it seems that the balance between fertility and career can never be achieved. An invisible survival pressure pushed them to the position of so-called “exploiters” of childbearing. But at the same time, how to fill the loopholes in the law to remind more “monarchs” not to go into the forbidden area is also worthy of consideration by legislators and the society.