Legislate surrogacy rather than ban it

The footage run by CCTV shows a client (L) talking with a ovum provider (C). [Photo/IC]

The final amended Law on Population and Family Planning that came into effect on Jan 1 seemingly does not ban surrogacy, meaning being a surrogate mother will not be a crime. This would reflect a prudent and cautious approach to this issue.

The Ministry of Health banned surrogacy in 2001, but the existing ban has failed to achieve the desired result of more efficiently regulating the issue. Surrogacy in China is essentially a social problem relating to supply and demand, and banning it completely has simply created a black market to cater to the demand.

While those who want a ban on surrogacy argue it is contrary to human dignity and social customs, and may give rise to "designer" babies, corruption and destruction of families, along with disputes about who "owns" the baby, the reality is there is great demand for surrogate mothers.

Therefore, legislation to strictly regulate the market would be better than a total ban, as it would better protect all the parties concerned and reduce risks.

Society should be inclined to recognize that surrogacy offers a means of easing the pressure on some families and enhancing the family as the basic unit of welfare, and in this way it plays a positive role in balanced economic and social development. One of the most important effects of surrogacy is to strengthen family support in terms of providing children who can offer future welfare and security for couples who can't have children themselves. More than 12 percent of people of childbearing age are now considered infertile according to the Chinese Population Association, as well as single parents who have lost their only child and some other vulnerable groups.

And even where children are not the primary economic support for their parents, their emotional support is still important.

This means that adoption and surrogacy are always important choices for some.

However, the modern adoption system monopolized by the State remains opaque, and the "best interests" principle to evaluate adoption eligibility discriminates against vulnerable groups, which further fuels the demand for surrogate mothers.

Some believe that the issue of surrogacy weakens the social status of women and is even a form of enslavement, if only symbolic, of women. However, surrogate technology separates fertility and sexuality, reducing the dependence of women on men and frees women from traditional family roles. A surrogate mother pursues economic gains rather than seeking to satisfy maternal instincts.

But while women can make money by being a surrogate, they face most of the risks and have little legal protection.

What is needed is comprehensive legislation covering all aspects of the issue. This would help eliminate the black market and better protect all parties involved.

The author is an associate professor of Sun Yat-sen University's law school.