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
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.