Is Surrogacy Illegal In China?

Surrogacy agreements, also known as surrogacy contracts, are compensated contracts between a surrogate and intended parents. However, Chinese law does not explicitly address the validity of such a contract. The “Administrative Measures for Human Assisted Reproductive Technology” prohibits surrogacy techniques, allowing only human assisted reproductive technology using the wife’s uterus.

Surrogacy agreements fall under the domain of contracts and are subject to the principles of the “Civil Code” enforced since January 1, 2021. The “Civil Code” upholds the principle of public order and good customs, requiring that contracts comply with public order, social customs, and moral standards. Surrogacy agreements, which treat the surrogate’s uterus as a rented “property” and commodify the child, violate these principles. As a result, surrogacy agreements are considered invalid.

In determining the custody of surrogacy children, the provisions of the “Civil Code” apply, treating them as non-marital children. Article 1071 of the “Civil Code” ensures that non-marital children have the same rights as children born within wedlock and are protected against harm or discrimination by any individual or organization.

According to the “Civil Code,” if the biological father or mother does not directly care for the non-marital child, they are legally obligated to provide financial support for the child if they are under 18 years old or unable to live independently.

When deciding custody for surrogacy children, for children under the age of two, it is generally customary for them to live with the mother. However, certain circumstances may lead to the child living with the father instead. These circumstances include situations where the mother suffers from an incurable contagious or serious illness that makes it unsuitable for the child to live with her. Additionally, if the mother has the ability to provide care but fails to fulfill her caregiving obligations, while the father requests to have the child live with him, the child may be placed in the father’s custody. Other reasons that render the child unable to live with the mother may also be taken into account.

If both parents agree and it is in the best interest of the child, a child under the age of two may be allowed to live with the father.

For children over two years of age, when both parents request custody, various factors are considered. These factors include cases where one parent has undergone sterilization or is otherwise incapable of reproduction. The length of time the child has lived with one parent and the potential negative impact on the child’s well-being when changing the living environment are also taken into consideration. If one parent has no other children while the other parent does, it may influence the custody decision. Similarly, if both parents have similar caregiving capabilities, but the child has been living separately with grandparents who are capable of assisting with childcare, this may affect the custody arrangement. Ultimately, the best interest of the child is the primary consideration. If it is deemed beneficial for the child, the parents may agree to alternate custody arrangements.

In conclusion, the determination of custody for surrogacy children is guided by the provisions of the “Civil Code.” Surrogacy agreements do not solely determine custody. Instead, the principles and guidelines that apply to children born within wedlock are followed. Surrogacy agreements are considered invalid due to their violation of public order, good customs, and social morality.