China's underground surrogacy market poses legal risks for infertile couples

Updated 2018-01-23 10:22:02

○ Infertile woman heartbroken about seriously ill son born via surrogate brought back from Cambodia

○ Clampdowns on surrogacy in Cambodia, Thailand and India push Chinese consumers into a risky legal environment

○ Declining fertility rate in China sparks discussion over legalizing surrogacy

A Chinese woman surnamed Lin who paid 450,000 yuan (,200) for a baby delivered by a surrogate Cambodian mother now must face the uncertainty of her new son's life, as it was revealed upon returning to China that the child is suffering from brain atrophy.

Lin, a single mother, has thus far had to pay over 2 million yuan in medical treatment for her son, Chinese news outlet thepaper.cn reported. What's worse, in a country where "any form of surrogacy" is normally suppressed, there would be little to no chance for Lin to obtain legal support.

After the lifting of China's old one-child policy, a sharp increase in the number of older Chinese couples experiencing infertility turned many to assisted reproductive technology or surrogacy. While surrogacy remains illegal in China, resorting to surrogacy mothers in other countries has become an increasingly popular solution for Chinese women who cannot conceive.

Cambodia is a major target country among Chinese women seeking surrogate mothers due to the relatively lower costs and friendly legal environment. But Cambodia has recently tightened its regulations on surrogacy, which is pushing prospective Chinese parents into an even riskier situation when trying to safeguard their rights.

Lin signed a contract with a China-based agency that specializes in surrogacy business in Cambodia and Russia in March 2016 for the baby. After the tragedy occurred, she questioned the agency's obligation of delivering a healthy baby for her, blaming it for failing to provide necessary living conditions to the surrogate Cambodian mother, which she believes to have directly caused her son's illness.

The agency's "golden package contract" clearly states that it "guarantees the success of operation, healthy birth, DNA test and their return to China." But when Lin contacted the agency about her woes, they simply responded that they would "replace a new baby for her or arrange another surrogate birth, as long as it was verified to be their fault for causing the tragedy."

Accepting responsibility

Lin cannot imagine how a life - the life of her beloved baby - can be so easily rejected and replaced by the surrogacy agency. However, when the Global Times contacted the agency for a comment, it quickly changed its tone.

"If the child was not yet born, it is indeed possible to consider other ways to make a 'withdraw,' but not after the boy was born. Now it is only possible for the agent to fix the problem through negotiation, and make corresponding compensation. If the two parties fail to reach a deal, we may consider raising the boy ourselves, or applying to the relevant department for establishment of a welfare institution," said the agency.

Liang Bo, founder of the surrogacy agency, admitted that after several years in business, this was their first experience dealing with an unhealthy baby.

In a statement posted on its official Weibo account, the agency said they regard the health of their infants as their top priority, and that the cause of the baby's condition has not yet been confirmed. They promised to take responsibility and pay compensation, but only if it is the result of medical malpractice.

Other surrogacy agents interviewed by the Global Times all said that such an incident rarely happens in this emerging market, so very few of them have well-prepared emergency response mechanisms or protection systems in place.

Only three out of the eight agencies contacted promised that they would find third party hospitals to conduct tests in this kind of case. But when asked to provide more detailed information about these so-called "third party hospitals," the agents only offered the vaguest of answers.

A customer service representative at Fukang Reproduction Assistance, a Wuhan-based surrogacy agency in Hubei Province, repeatedly emphasized that they "are more eager than their customers to deliver a healthy baby, because once negatively exposed they will not be able to exist anymore, facing a big loss in market share and a strong punishment from the administrative department."

"An infertile mother is sometimes truly obsessed with having a healthy baby. Now it costs 1,000 yuan everyday for my child to take the rehabilitation injection, which will continue until he is one year old. I don't know how to survive in the future," Lin was quoted as saying.

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