A celebrity scandal puts the spotlight on a banned reproductive practice in China
“The disregard for life is heinous,” CCTV railed in a recent Weibo post written in response to a massive surrogacy scandal that has engulfed actress Zheng Shuang.
The 29-year-old actress is accused of abandoning her two children born to surrogate mothers in the US, leaving her ex-boyfriend Zhang Heng, a producer of a variety show in which Zheng starred, to look after them.
However, what started as a celebrity scandal has inspired reflection on surrogacy (代孕), which is banned in China. The Communist Party’s Central Political and Legal Affairs Commission condemned Zheng for “taking advantage of legal loopholes” by going to the US for a surrogate, and claimed that surrogacy exploited women and treated their uteruses as a commodity. CCTV meanwhile lambasted the practice as “trampling the bottom line” of morality.
Hiring a woman to carry and give birth to a child for another person is prohibited on Chinese soil by various regulations. In 2001, the Ministry of Health banned medical institutions and health care workers from “practicing any form of surrogate technology.” Likewise, the trade of sperm, ova, and embryos is also strictly prohibited. Medical institutions can be fined up to 30,000 RMB (4,632 USD) for violations, according to the rules.
However, there is no ban on individuals or agencies from commissioning or providing access to surrogacy services, so agents organizing surrogacy abroad are easily available. “Zheng’s practice of pursuing surrogacy abroad is immoral, but it’s hard to say she broke the current law,” Tan Fang, a Shanghai-based lawyer, told the Shanghai Law Journal.
Legal loopholes, and desperate couples, have led to a black-market and avenues for overseas surrogacy in China. Blued, an online gay dating app, used to operate a service named “Blue Baby,” which provided users with professional assisted reproduction services available in foreign countries. The service was removed following a media exposé in July 2020. Informal advertisements from surrogate agencies can often be found on flyers in public areas in China.
Some of these businesses operate underground, with demand seemingly driven by people without access to adoption or reproductive assistance technologies. China’s restrictive family planning laws limit most infertile and homosexual couples from adopting. In an undercover report by Youth Times in 2006, an agent also claimed that some wealthy women choose surrogacy as a way to maintain their figures. The most popular destination for those seeking surrogates is the US, where surrogacy is legal in some states. The parents generally return to China with the children to raise them.
Chinese society appears to be widely opposed to the practice. A 2017 poll by the party-run People’s Daily showed that 81.5 percent of more than 7,000 respondents opposed surrogacy. A recent short film by renowned director Chen Kaige in 2020 was also denounced by viewers for allegedly romanticizing the practice. Reasons for opposition vary, from believing it is unnatural or against traditional family ethics, to the idea that it commercializes women’s bodies and objectifies them as reproductive machines.
In an article posted on WeChat, the Women’s Federation of Lishi District in Lüliang, Shanxi province, argued that surrogacy would lead to the exploitation of poor women by the wealthy, forcing poor women to make a living carrying babies at huge cost to their health. The article referenced a 2013 BBC documentary House of Surrogates, which investigated the legal, and often highly exploitative, surrogacy market in India. Since then, a 2018 law has made commercial surrogacy illegal in India.
Similarly, in an article published on remote medical service platform Dingxiang in January, Doctor Tian Jishun argued that legalization and marketization of surrogacy would lead some unscrupulous individuals or organizations to coerce women to become surrogates for their own personal profit. Feminist bloggers on Weibo have pointed out the risk of allowing surrogacy before China’s legal system has better developed rules around reproductive and custody rights, and speculated that some poor or male-preferring families might force their daughters to become surrogates to support their parents or brothers.
Others argue that the ban on surrogacy does not stop the practice but forces it onto the black market where it is unregulated and unsafe. “Prohibition also allows the authorities to abdicate responsibility for protecting women from the risks of surrogate pregnancies,” Dun Tao, chief physician and professor at Shanghai First Maternity and Infant Hospital Corporation, told Sixth Tone in 2017.
With proper regulation, Dun argued, the black market for surrogacy would disappear; the price of surrogacy could be regulated; authorized medical institutions would stop aborting children based only on their sex; surrogate mothers would have access to regular medical checkups throughout pregnancy; and doctors would be able to screen for complications.
Sun Xiaomei, a professor at China Women’s University and deputy to the National People’s Congress, told the Beijing News in 2016 that following the relaxation of the “one child policy” the problem for many couples is not being “afraid to have a second child,” but “the inability to have a child.” Sun claimed she knew a couple who divorced because the wife was infertile, and they were unable to afford to hire a surrogate.
Hiring a surrogacy abroad can still lead to complications, as in the case of Zheng and Zhang. According to an article published on the website of Legal Daily, Chinese law provides no direct guidance on the exact parent-child relation in a surrogacy case, nor stipulate what a parent-child relationship is in legal terms. Anyone who contests a parent-child relationship can file a lawsuit in the People’s court to confirm or deny the relationship. Zheng’s relationship to her child born of surrogates in the US remains unclear under current laws, which would need to be updated if China were ever to legalize and regulate surrogacy.
Another worry is that the rights of children could be violated. The continued preference for male children in many Chinese families makes some worry that girls carried by surrogates might end up being abandoned. Similar concerns exist over children born with disabilities or, as seems to be the case with Zheng, when the parents split up before the children are born.
In January, The Paper reported that a couple canceled a deal with a surrogate mother, surnamed Wu, in southwest China after discovering she had syphilis during her pregnancy. Wu gave birth to the child nevertheless, sold the birth certificate on the black market due to financial difficulties, and now faces difficulties getting her daughter the household registration (hukou) she needs to go to public school and access other social services.
For Zheng at least, the consequences of seeking surrogacy, and then appearing to abandon the children, has had devastating effects. Brands have rushed to drop her as a commercial partner, and her previous films and TV shows have been put under a broadcasting ban. In the face of this moral outrage, it is difficult to imagine when a more rational discussion on legalizing surrogacy can start again in China.