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Original Title: Nancai Quick Review: There Are Legal Methods For Surrogacy Disputes, But Child Care Should Be An Ethical Issue
Zhao Cong
Surrogacy is a common problem in law and ethics. China has adopted a completely banned regulatory model. However, reports of surrogacy are common in the media until the Zheng Shuang incident completely exposed this gray industry in public view and sparked heated discussions among the people. . Surrogacy and its related reproductive rights can conflict with the personal dignity, public order and good customs of pregnant mothers and children, and has been fraught with controversy in all sectors of society.
The National Health Commission promulgated the “Administrative Measures for Human Assisted Reproductive Technology” in 2001, which preliminarily regulates assisted human reproduction problems, including surrogacy. The clause that staff must not implement any form of surrogacy technology “remains the sole basis for China’s express ban on surrogacy.” However, as the infertility rate in our country has been increasing year after year, the number of national rigid needs groups has increased and the system of surrogacy abroad has changed enormously. This article also highlights a number of problems.
First, in 2015, when the Standing Committee of the National People’s Congress revised and approved the “Amendment to the Population and Family Planning Law of the People’s Republic of China”, it removed the “prohibition of surrogacy” clause from the draft. Many committee members thought that the question of surrogacy was complicated and whether it should be prohibited and comprehensive. The effectiveness of the ban requires further investigation and solicitation of opinions, reflecting the challenge and caution of the legislation.
Second, the subjects prohibited by the “Administrative Measures on Human Assisted Reproductive Technology” are medical institutions and medical personnel, not parties to the surrogacy agreement. For groups of surrogacy abroad, especially the return of the surrogate child to the country for naturalization, there have never been obstacles. As long as one of the parents is a Chinese citizen, the child can successfully obtain Chinese nationality for agency surrogacy. Therefore, more and more foster parents are turning their attention abroad, and Zheng Shuang and Zhang Heng have chosen the United States, which has relatively flexible regulations.
The United States does not have a unified federal legislation on surrogacy and there is no Federal Supreme Court ruling, but each state decides for itself. According to birth certificates circulating on the Internet, the two children of Zheng Shuang and Zhang Heng were born in Nevada and Colorado: Nevada law clearly recognizes the legality of surrogacy arrangements, while Colorado law does not stipulate that surrogacy be legal. But it also allows such industries to exist by default. Currently, 26 states in the United States allow surrogacy, 5 states and 1 DC (including Arizona, Michigan, New York, Utah, Washington, and the District of Columbia) consider surrogacy to be a crime. The other 19 states prohibit surrogacy agreements with consideration. But there is no objection to voluntary surrogacy.
Although some states in the United States have adopted a tolerant attitude toward surrogacy, such an attitude is based on a desire and respect for life rather than the pursuit of commercial interests. Through surrogacy, on the one hand, infertile parents can raise children with their own genes, and on the other hand, it also compensates for the pain of pregnant mothers who return their conceived children to their biological parents. In US court cases, the most common dispute is the fight for custody of pregnant mothers and biological fathers. States have also formed a relatively comprehensive resolution mechanism.
If Zheng Shuang and Zhang Heng have a disagreement on whether or not to have a child, it is not difficult to resolve the dispute. If Zheng Shuang decides not to have a child before he is born, then he can choose to go through legal proceedings and get Zhang Heng out. Change to be the child’s sole guardian. Even if the child is jointly raised by Zheng Shuang and Zhang Heng after birth, the two can fully resolve the child custody dispute through legal means. But things have become the current situation, and the contradiction between the two people may have exceeded our guesses.
In the United States, incidents like “surrogacy and abandonment” of Zheng Shuang actually happen very rarely. Most foster parents love their children and the placement of abandoned foster babies is not the focus of the law. On the Internet news recording, Zheng Shuang’s parents suspected that they spoke of “abortion” as if they were talking about property, filled with contempt for life and itching on the nerves of the fans. According to Jiang Peifang, a practicing attorney in the United States, “surrogacy and abandonment” is a gray area that is very difficult to restrict by law. Surrogacy agencies and attorneys cannot become the main body in litigation and abandonment cases when they encounter such incidents. Responsible agencies can. It is to help abandoned children to find a good foster institution.
At present, the parents’ name is clearly written on the child’s birth certificate, which may already explain the ownership of the child’s guardianship. Therefore, on some important issues, both parties must sign together. Even if China does not prohibit surrogacy children abroad from returning to the country, Zhang Heng, who has only half the guardianship, can hardly go through the procedures for obtaining passports and visas alone. Without Zheng Shuang’s signature and commission, the location of the children is worrying.
(The author is a partner at the Beijing Zhongwen law firm and holds a Juris Doctor from the University of New South Wales, Australia)
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