Legal gray area
Liao Hua of the Tahota Law Firm in Chengdu, Sichuan Province, told the Global Times that a signed surrogate contract is invalid in China, as it is in direct violation of State regulations against surrogacy. Liao added that it is difficult for such clients to obtain legal aid or receive compensation when such a dispute emerges.
Only by complaining to relevant organizations following a general civil tort procedure does Lin stand a chance of being financially compensated, according to Liao.
However, Liao revealed that these agencies employ professional lawyers to guide them against potential risks prior to signing a contract with a new client. The lawyers' intervention makes the legal edge of these "gray transactions" more flexible.
"In such a deal, once problems appear, consumers will find it hard to get any legal recourse, as no Chinese governmental department is able to accept the case. And there are few professional lawyers in China who are able or even willing to support them in a lawsuit," said Liao told the Global Times.
Even if the case was accepted by a court, there is no clear legislative term or precedent cases for reference. That is why a private negotiation is the most typical way to resolve such problems, Liao added.
Lin told media that she divorced her husband after the tragedy with their new baby happened. According to her, the father's business started to suffer after a long period of distractions during their stay in Cambodia.
Though she refuses to "return" her baby for a refund, as the agency suggested, the tremendous medical expenses have nearly broken this single mother's back. But some other parents have in fact opted for a refund or outright abandonment after discovering that their baby born via surrogate was sick.
In 2014, an Australian couple left their 6-month-old baby with its Thai surrogate mother because they could not afford the medical treatment for his congenital heart condition. Bizarrely, that baby was born with a twin sister, who was perfectly healthy and brought back to Australia with the couple.
Liao said that if parents in China abandon their baby after taking it from the surrogate mother, they could face the charge of desertion. However, if they have not taken the baby from its surrogate mother, the situation "becomes complex" due to the lack of established legislative measures in China about how to deal with such a situation.
Legislative discussion
As a lawyer, Liao is calling on China's legislature to improve related polices as soon as possible, so as to protect the legal, financial and emotional interests of all parties.
Qiu Renzong, an expert at Chinese Academy of Social Science who has spent 30 years studying in bioethics, offers other suggestions. "The Chinese government should consider setting some rules to allow surrogacy in certain circumstances. For possible abandonment, welfare institutions should be set up, which the parents in question should have to pay for."
According to Cambodia Daily, the Cambodian health minister banned surrogate pregnancy arrangements across the country in October of 2016, with a joint working group of multiple departments launching a sweeping campaign against illegal surrogacy operations.
The involved agency in Lin's case asserted that she should take responsibility simply because it is illegal to smuggle children born via surrogates back into China. They allege that the process of smuggling the newborn is what caused the baby to suffer from brain atrophy.
Prior to Cambodia's ban on surrogacy, Lin had reached an agreement with the surrogate agency to find her a Cambodian surrogate mother. But her child was not born until July of 2017, which was after the new policy was already being enforced. Lin described the situation during her stay in Cambodia as "messy and terrifying," as a number of surrogacy agencies were getting shut down.
As some surrogacy agents confirmed to the Global Times, many of them are in fact Chinese mainland-based businesses. Liang Bo, the spokesman of the company involved in Lin's case, revealed to the Global Times that Chinese consumers account for 80 percent of Cambodia's entire surrogacy market.
According to the latest data released by China's National Statistics Bureau last week, there were 17.23 million births in China in 2017, down from 17.86 million in 2016, when China already launched its new two-child policy. This has raised public concerns that declining fertility may threaten the nation's long-term development.
There have been discussions about the possibility of legalizing non-commercial surrogacy in order to support China's two-child policy and make the current underground surrogacy industry better regulated.
The revised Population and Family Planning Law promulgated at the end of 2015 did not include any clause banning surrogacy. During an early drafting process of this law, the National Health and Family Planning Commission (NHFPC) had claimed that they would make the ban clearer, but ultimately they did not put it into the law.
"Market entities can do anything that is not prohibited by law. For us, we regard the absence of definite stipulations on surrogacy as a sign that the government has turned a blind eye to this industry," one surrogacy agent told the Global Times.
The NHFPC, however, insisted that surrogacy is a complicated matter that involves legal, ethical and social issues and would continue to crack down upon the surrogacy industry.
