Comparative Politics featured international Surrogacy

The Legality of Surrogacy and Its Implications

April 11, 2021 | Zhihan (Jill) Ji

Edited by Maia Fingerlos


In the past months, the news of a Chinese celebrity hiring a surrogate to give birth to two children in the United States shocked the Chinese public, inciting backlash. There soon was a viral online discussion of why surrogacy is illegal and should forever remain so, with reasons related to women’s rights, social inequality, human rights, and more. Interestingly, surrogacy among celebrities seems to be a norm in the United States. From Kim Kardashian and Kanye West to Tyra Banks, many celebrities chose surrogacy for various reasons, notably infertility. Many Chinese celebrities, however, undertook this route to avoid the physical pain and the risk of getting out of shape. What exactly leads to different reactions and perceptions of surrogacy’s legality? Do implications pertaining to this choice exist?  

Surrogacy refers to a woman, often known as the “surrogate” or the “gestational mother”, consenting to become pregnant and carry a child for someone else under a surrogacy agreement. [1]. Full surrogacy means the genetic material utilized in the process derives completely from the intended parents, while partial surrogacy refers to arrangements where the surrogate’s genetic material is used[1].  The two common types of surrogacy seen today are altruistic and commercial surrogacy, also known as compensated and uncompensated surrogacy, respectively[1]. Despite its ambiguous legality in multiple countries, the surrogacy industry continues to flourish. Estimates suggest that the business expanded by 1000 percent globally between 2006 and 2010[1]

The US and China hold distinct legislative systems that approach the issue of surrogacy differently. The US is a federal country and thus, does not have a standardized regulation on surrogacy, with only about half of the states having legislation regarding surrogacy[1]. Some states depend on past cases to produce legislation or regulate the process, while other states do not have any regulation at all[1]. The states’ legal position towards surrogacy can be divided into three types. The first is explicit prohibition, in states such as New York, New Jersey, Indiana, and Michigan[1]. Surrogacy contracts in these states are deemed void and null. The second category is explicit permission, which fourteen states fall under this[1]. Additionally, the extent of permission also differs, with some states allowing compensation while others do not[1]. Some states only have legislation regarding full surrogacy and regulate the intended parent’s criteria1]. California is a very representative state[1]having explicit laws permitting full surrogacy contracts only, as well as authorizing compensation for the gestational mother[1]. These regulations hold no restriction on who can become a surrogate or intended parents and are open to all different aspects of surrogacy[1]. The third legal position is ambiguity, or that surrogacy is not addressed at all which is seen in states such as Massachusetts, Tennessee, and etc.[1].

China, on the other hand, has issued formal legislation that addresses the illegality of surrogacy across the country. In 2001, the Ministry of Health promulgated the Administrative Measures for Assisted Human Reproductive Technology that expressly prohibits the trade of gametes, zygotes, and embryos in addition to establishing that no hospitals or clinical institutions cannot perform surrogacy of any kind[2]. Despite directly addressing surrogacy, the legislation itself contains loopholes that may make the enforcement of actual prohibition difficult, hence, explaining the presence of a large black market for surrogacy in China today. The legislation restricts the hospitals or other forms of clinical institutions’ right to practice surrogacy but does not exclude the effectiveness of contracts devised among civilians granting some level of autonomy to the civilians regarding their reproductive rights[2]. This ambiguity cultivates the relatively messy and unregulated status quo in China’s surrogacy industry, leading to the exploitation of women and trafficking of children occurring often with no regulation or protection from the government. 4].

Perhaps the existence of an explicit, government-issued prohibition explains part of the Chinese public’s repulsion towards surrogacy, but there are many other underlying reasons as well. To some extent, the negative attitude derives from the lingering effects of the long-implemented single-child policy and the lack of proper technology or protective measures for surrogates in many underdeveloped areas that commodify women. One major difference between the two countries is that China remains a developing country and often lacks advanced technology as well as protective measures for surrogate mothers. In other words, China is not equipped to legalize surrogacy due to the fact that it does not have complementary legislation that protects the surrogates’ health and rights. For example, many surrogates must perform direct conceptions, meaning the surrogates must engage in sexual intercourse with the intended father. This is as a result of China’s lack of skills pertaining to Invitro Fertilization[2]. This can easily make the gestational mothers unwillingly become “prostitutes” who essentially rent their organs and body[2]. The issue is exacerbated by the fact that surrogacy can pose multiple health risks; many need to receive hormone injections continuously to maintain embryo growth state how this can be dangerous [3]. Even if surrogate mothers face potential risks such as miscarriage, shock, and sometimes even life-threatening conditions, there is no formal legislation protecting them. Additionally, many surrogacy agencies abandon them for healthier surrogate mothers to continue gaining profits[3]. Article 38 of the Chinese Constitution states that “the personal dignity of citizens of the People’s Republic of China is inviolable”[1]. Surrogacy involves an individual’s reproductive rights and bodily autonomy. The commercialization of the reproductive organs, especially through direct conception, commodifies women as reproductive machines, severely violating the Constitution. 

The perception of reproductive rights in the two countries may, on its own, result in the opposing attitudes towards surrogacy. Family and population planning in China via the single-child policy restricts the limitless abuse or squander of reproductive rights, creating the social norm that reproduction rights, along with women’s bodily autonomy, exist to be restrained and regulated [1]

Regardless of the source of such public outrage, this phenomenon reminds us of the implications of legalizing surrogacy and poses many questions. Surrogacy contracts categorize reproductive rights and parental rights as property when the corporal body and emotions are complex and unquantifiable.  The familial bonds and care that children need to grow up healthily sometimes curtail when society deems babies a purchasable product that can be mistreated or sometimes even abandoned if not up to the intended parents’ expectations. The motherly emotions that surrogate mothers often feel or attach to the child are also blatantly ignored and negated, turning their emotional needs into illegal pursuits. There are certainly many problems regarding surrogacy anywhere. From undermining human rights to promoting gender inequality, surrogacy….. However, it is also true that with decreasing birth rates in many nations, population aging and disproportionality between men and women emerge as serious issues that need to be addressed. Whether surrogacy should be legalized, and if so, in what ways, remain an ambiguous question in all places. Surrogacy is unique in that it is not just a commercial trade between two parties but something that involves human lives, bodies, and emotions. The discourse around surrogacy’s legitimacy thus inevitably involves whether humans can be commodified and if not how can legitimacy be established without reducing people to machines. It is important to remember that before anything else, we are all living humans.

Ji is a freshman majoring in International Studies with a minor in Film and Media Studies and Spanish. She also has contributed a review of the United States’ and China’s affirmative action policy to the Online Publication.


Sources:

[1] Finkelstein, Alex, et al. “Surrogacy Law and Policy in the US.” (2016).

[2] Feng, Yuan & Li, Chunbin. “公序良俗:代孕技术限制的法理基础.” Journal of Ningxia University (Humanities & Social Sciences Edition) 4(2012): 121-125.

[3] Lanjun, Guan. “为什么要旗帜鲜明地反对代孕合法化?(1)_观点流_光明网”. Guancha.Gmw.Cn, 2021, https://guancha.gmw.cn/2017-02/16/content_23737710.htm.[4] Ma, Longqian. “国内代孕乱象及其规制路径”. Journal of Southeast University (Philosophy and Social Science) 22(2020): 58-62.

Photo Credit: OZY

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