The bond of nurturing or the bond of blood, which is more important?

Compiled from: Huli District Court, Jufa Network
 
Recently, the Huli District People's Court of Xiamen publicly heard and ruled on a special child support dispute. It is understood that the disputing parties are a same-sex couple, one claiming the child is her biological offspring, the other stating she gave birth to the child... In this case, how is parentage determined? Which mother should raise the child?

 

 
Case review
Plaintiff A 诉称：
She is a single person who always wanted a child but could not conceive due to health issues. In 2018, she met Xiaomei, who, after learning about her situation, offered to help with surrogacy. In March 2019, A contacted a reproductive service agency, and the two went to the hospital multiple times for preliminary checks and treatments to prepare for IVF; on April 2 of the same year, A had her eggs retrieved through medical means and fertilized with sperm purchased from a third party to create embryos; five days later, the embryo was transferred into Xiaomei's body, and Xiaomei became pregnant. In December 2019, Xiaomei gave birth to a baby girl at a hospital in Xiamen. In February 2020, Xiaomei took the child away and registered the child as her daughter, stating that A would no longer be allowed to see the child.

 
 

A stated that she wished to have a child and had a stable financial foundation, so she provided the eggs and covered the costs of purchasing sperm and other expenses for Xiaomei to act as a surrogate. The child has no biological relationship with Xiaomei, and she herself is the mother. She requested confirmation of a parent-child relationship between A and the child and that the child be placed in her custody.
 
Defendant Xiaomei argued:
[1] The two parties were in a same-sex partnership, living together, and the decision to have a child was a joint one made after consultation. Da A's claim that Xiao Mei was her surrogate is entirely fabricated. During their cohabitation, they mutually decided that Xiao Mei would give birth to the child. After the child's birth, the household registration followed Xiao Mei, and both parties agreed to raise the child together. At the same time, Xiao Mei has the financial ability to raise the child. The child was carried and delivered by Xiao Mei after ten months of pregnancy, creating a natural parent-child relationship and strong emotional bond. Moreover, the child is still young and needs Xiao Mei's nurturing and companionship. Da A, however, has no solid emotional or blood connection with the child, being neither the child's mother nor father.
 
 
[1] Court Opinion
[2] The Huli District Court found that Da A and Xiao Mei were originally in a same-sex relationship. During their relationship, Xiao Mei gave birth to a daughter, Yaya, at a hospital in Xiamen in December 2019. Yaya's birth certificate lists Xiao Mei as the mother, with no father information recorded. Based on the WeChat chat records between Da A and Xiao Mei, it was determined that the method of Yaya's conception was decided after consultation and mutual agreement during their relationship. Da A also had no evidence to prove the existence of a surrogacy agreement with Xiao Mei.
 
[3] Both the plaintiff and defendant confirmed that the egg used to form Yaya's embryo was Da A's, and the sperm was purchased. Yaya was conceived through assisted reproductive technology combining the aforementioned egg and sperm, and was carried and delivered by Xiao Mei. Yaya was cared for by both parties from birth until February 26, 2020, after which Xiao Mei took her away from the residence and has lived with her since.
 
[4] The Huli District Court held that the actions of Da A and Xiao Mei, as a same-sex couple, in purchasing sperm and using assisted reproductive technology to conceive a child are not permitted under Chinese law. Although both parties confirmed that Yaya was conceived using Da A's egg and purchased sperm, and carried and delivered by Xiao Mei, in the absence of clear legal provisions, a legal parent-child relationship between Da A and Yaya cannot be established solely based on their confirmation or Yaya's genetic connection to Da A. Moreover, Yaya's birth certificate lists Xiao Mei as her mother. Therefore, Da A's claim to establish a parent-child relationship with Yaya is neither reasonable nor legally supported, and the court did not uphold it. Additionally, Yaya was carried and delivered by Xiao Mei, has been cared for by her since birth, and is still under one year old, requiring breastfeeding. Continued custody by Xiao Mei complies with legal provisions and is conducive to Yaya's healthy development.
 
[5] The plaintiff has no evidence to prove that she is Yaya's mother. Her request for custody of Yaya lacks both factual and legal basis and is not conducive to protecting the minor's physical and mental health. Therefore, the court does not support her claims. The first-instance judgment dismissed Da A's claims.
 
 
[1] The author's perspective
[6] With the continuous advancement of technology, the use of assisted reproductive technology is no longer limited to infertile couples but has expanded to individuals affected by personal factors and marital status. Such groups can now fulfill their reproductive wishes through assisted reproductive technology. However, if these actions are not carried out within the legal framework, the corresponding behaviors and consequences may not be protected by existing laws.
 
In this case, the plaintiff and defendant were in a same-sex partnership, which is not regulated by China's marriage law or other civil laws, and they were unable to achieve their reproductive goals under the existing regulations on assisted reproductive technology in China. Therefore, their series of actions, including purchasing sperm for in vitro fertilization and embryo transfer, were illegal. The Civil Code of the People's Republic of China, which will come into effect next year, includes prohibitions on the sale of human cells, reflecting the negative evaluation of such actions by Chinese law. At the same time, the determination of parent-child relationships for children born through this method must comply with the most basic principles of public order and good customs in civil law. In the most fundamental ethical views of the public, the establishment of a mother-child relationship is not based on biological genetic continuity, but on the emotional connection brought by the gestation process of "ten months of pregnancy" and the pain of childbirth. This is also why the "Medical Birth Certificate" records the mother based on gestation and delivery. Therefore, the plaintiff's claims cannot be supported by the court.