Surrogacy in China: What does the actual situation look like?

The first case of surrogacy in China occurred in 1996 and since then it is estimated that more than 25,000 children have been born in this country thanks to this reproductive technique. However, it is important to point out that the vast majority of these cases have been carried out clandestinely since 2001, when the Chinese government banned both commercial and altruistic surrogacy.

In February 2001, the Chinese Ministry of Health published the "Administrative Measures on Assisted Human Reproduction Treatments", which prohibits any form of trade in embryos and prohibits any health professional from carrying out a subrogation procedure that goes against these Administrative Measures, with the possibility of being fined up to 30,000 yuan and prosecuted for criminal responsibilities.

Surrogacy prohibition

The existing regulations in China insist on different main aspects:

• The surrogacy agreement, both altruistic and commercial, that goes against public order or violates any rule or regulation of the law will be null and void.
• Sanctions for performing this technique will be imposed on the responsible medical staff and not on the surrogate or the future parents, nor on the intermediaries in the process.
• Priority is given to the best interests of the child.

The prohibition avoids the great social, ethical and legal chaos that surrogacy implies because there are many questions without a clear answer, such as: what to do if the surrogate becomes ill or does not want to give up the baby, what type of woman can become a surrogate, what requirements must the intended couple fulfil in order to be able to submit to surrogacy, who is responsible in case of abortion?

Surrogacy conditions China

However, the prohibition of surrogacy raises the question of constitutionality. Chinese citizens have the right to have a child according to the Constitution. Therefore, prohibiting any form of subrogation eliminates the right to have a child for couples with infertility or any other problem where the pregnancy could pose a serious risk to their health or life. In this sense, the Administrative Measures on surrogacy announced by the Ministry of Health go against the Constitution.

Surrogacy Agencies in China

There are numerous agencies in various Chinese cities that mediate in a surrogacy process. Even in cities like Beijing, these agencies are advertised in the streets. However, the Chinese Government appears to turn a blind eye to clandestine surrogacy proceedings despite the express prohibition of surrogacy contracts.

The considerable demand from many couples desperate to have a child and the loopholes in the regulations are the main reasons why the poor implementation of the existing regulations has led to the flourishing of the clandestine subrogation industry.

Considering the sanctions imposed on the medical personnel in charge of the process, the only way to carry out a surrogacy process in China is clandestinely or without medical intervention, that is, those cases of partial surrogacy in which the surrogate becomes pregnant by having sexual relations with the future intended father.

However, both options may involve serious ethical and legal problems, which will have to be resolved through private negotiations or in some cases by the courts.

Suggested for you

If you are looking for information on safe destinations for a surrogacy process, we recommend that you access the following article: Which country is best for a surrogacy treatment?

Another option for parenting is adoption. International adoption in China has allowed many Spanish families to have a child, although today it is more complicated by long waiting lists. You can find out everything here: In which countries is it possible to perform adoption abroad?