Surrogacy in China: A dilemma between public policy and the best interests of children

Abstract

Driven by high demands from society, the surrogacy industry has flourished in recent years in China with an estimate of 10,000 resulting children born every year. The legislature has deliberately chosen to refrain from prescribing rules on how surrogacy should be managed and governed in China. Through adjudicating surrogacy-related disputes, Chinese courts have played a crucial role in establishing the framework under which surrogacy operates. Applying Article 3 of the 2001 Measure expansively in conjunction with some general principles such as public order and morals, the court has laid down a de facto general ban on surrogacy of any form. The assignment of legal parentage has been influenced by this public policy consideration and Chinese courts ruled out the enforceability of parentage transfer agreements between the parties. With the surrogate carrier being designated as the natural mother and intending mother as the social parent, this arrangement creates further uncertainties and confusion over legal parentage and custody, which is not in the best interest of the resulting child.