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LETTER OF THE LAW

Booming surrogacy business is a legal grey area

Mainland firms are meeting the growing demand for reproductive technology, despite uncertainty over the laws on such procedures

PUBLISHED : Tuesday, 12 November, 2013, 4:53am
UPDATED : Tuesday, 12 November, 2013, 6:21am
 

True to their reputation for no-holds-barred entrepreneurship, a growing number of mainland companies are cashing in on the burgeoning surrogacy business, albeit discreetly.

A combination of factors, including widespread infertility, a culture steeped in continuing the bloodline and - in some cases - the official one-child policy has led an increasing number of mainlanders to rent a womb. The issue came to prominence in 2006, when a Guangdong couple was found to have eight babies born to two surrogates at the same time, with a price tag of one million yuan (HK$1.27 million). A public outcry ensued.

Yet gestational surrogacy, in which a surrogate carries an embryo biologically unrelated to her via in vitro fertilisation, is booming thanks to a legal grey area and lax official oversight.

In 2001, the Ministry of Health announced the Administrative Measures for Human Auxiliary Reproduction Technology, banning all manner of trade in fertilised eggs and embryos and prohibiting medical institutions and staff from performing surrogacy procedures. It also requires reproduction technology to be introduced in line with national family planning policy, ethical principles and the law.

The regulations are commonly flouted. To avoid using the term "reproductive technology", surrogacy websites tout themselves as brokers recruiting "volunteer" surrogates. But legal uncertainty remains.

Contract law does not cover surrogacy agreements. Hence, while such agreements between broker, surrogate and parents-to-be are not illegal, they may not be legally enforceable.

The question of who the legal mother is becomes critical when either party has a change of mind: for example, when the surrogate decides to keep the newborn, or the intended parents want a way out because of marital problems or if the child is born deformed.

Surrogacy also highlights glaring inequalities in the enforcement of family planning rules. Most mainland families are restricted to having one child. In theory, that includes government officials, employees of state-owned enterprises and Communist Party members.

Those who violate the policy are subject to heavy penalties. Forced abortions or sterilisations have been widely reported, especially in poor rural regions.

Compare that to the growing popularity of surrogacy, performed locally or overseas, among the rich and powerful who want to get around the one-child rule. While the legal status of the second child under the national household registration ( hukou) policy remains unclear, the phenomenon raises a disturbing moral question.

"Designer" babies, some bearing Eurasian features, are reportedly in demand among couples, who can pay up to US$120,000 for an American-born child. With the additional hope of emigration - US citizens can apply for green cards for overseas parents when they turn 21 - many are attracted by the promise of a baby designed to order.

Despite a traditional preference for gestational surrogacy, many Chinese are open to egg donation, especially from donors with prestigious US degrees or those of European descent.

With gender selection and genetic screening legal in surrogacy procedures in the US, a designer baby may become another coveted item for China's privileged class.

Early this year, the Ministry of Health reaffirmed the surrogacy ban, while asking experts to ponder the related legal, ethical and social issues.

Meanwhile, a Boston-based surrogacy agent plans to recruit a representative in Shanghai next year.

Dr Karen Lee is an assistant professor with the Hong Kong Institute of Education's department of social sciences

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