[5] Surrogacy—prohibited by law, intolerable by morality!
Compiled from: Weibo, Xinhua Net
In the past couple of days, the term "surrogacy" has been thrust into the spotlight due to a celebrity suspected of "surrogacy and abandonment." In fact, surrogacy-related topics have repeatedly made headlines recently. The most recent incident involves a "3-year-old girl, the first to be rejected by a surrogacy client, still unable to register for household registration," while a slightly earlier one is director Chen Kaige's short film "Baby," both of which have sparked discussions on surrogacy issues.
Surrogacy, commonly known as "borrowing a womb to have a child," refers to the act of a woman accepting a commission from others to bear a child for the commissioning party through artificial reproductive methods. Surrogacy is illegal in China, but the act of surrogacy itself does not constitute a crime. Does surrogacy or organizing surrogacy constitute the crime of organizing the sale of human organs? The answer is no, because the crime of organizing the sale of human organs requires "selling," whereas in surrogacy, only the implantation of a fertilized egg into the surrogate's uterus is involved, without any "sale" of organs such as the uterus. This act is considered a "rental" behavior, and current law does not classify renting out human organs as a crime.
To date, surrogacy has formed a gray industrial chain, which includes the buying and selling of eggs for profit. However, organizing the purchase of eggs does not constitute the crime of organizing the sale of human organs. From a modern medical perspective, an egg is not an organic structure used to perform specific physiological functions; that is, it is not an organ but a product of an organ. Therefore, organizing the purchase of eggs cannot be defined as "organizing the sale of human organs," as doing so would violate the principle of prohibiting analogical interpretation in criminal law.
Relevant legal provisions
"Criminal Law of the People's Republic of China"
Article 234
Whoever organizes others to sell human organs shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined; if the circumstances are serious, the sentence shall be fixed-term imprisonment of not less than five years and shall also be fined or have property confiscated. Whoever removes an organ without the person's consent, or removes an organ from a person under the age of 18, or forces or deceives someone into donating an organ, shall be convicted and punished in accordance with Article 234 (intentional injury) and Article 232 (intentional homicide) of this Law. Whoever removes an organ from a corpse against the deceased's生前 wishes, or without the deceased's生前 consent, in violation of national regulations, or against the wishes of the deceased's close relatives, shall be convicted and punished in accordance with Article 302 (theft, insult, intentional destruction of corpses) of this Law.
Article 336
Whoever, without obtaining a doctor's practice qualification, illegally practices medicine, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and shall also or only be fined; if the patient's health is seriously harmed, the sentence shall be fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined; if the patient dies, the sentence shall be fixed-term imprisonment of not less than ten years, and shall also be fined.
"Administrative Measures for Human Assisted Reproductive Technology" (2001)
Article 3 The application of human assisted reproductive technology shall be carried out in medical institutions for medical purposes, and shall comply with the national family planning policy, ethical principles, and relevant legal provisions. The buying and selling of gametes, zygotes, or embryos in any form is prohibited. Medical institutions and medical personnel shall not implement any form of surrogacy technology.
Article 22 If a medical institution conducting human assisted reproductive technology violates these measures by committing any of the following acts, the health administrative department of the provincial, autonomous region, or municipality directly under the Central Government shall issue a warning, impose a fine of not more than 30,000 yuan, and give administrative sanctions to the responsible persons; if a crime is constituted, criminal liability shall be pursued according to law:
(1) Buying or selling gametes, zygotes, or embryos;
(2) Implementing surrogacy technology;
(3) Using sperm provided by an institution that does not have a "Human Sperm Bank Approval Certificate".
(4) Unauthorized gender selection;
(5) Incomplete records of assisted reproductive technology procedures;
(6) Failure to meet technical quality standards as assessed by designated technical evaluation institutions;
(7) Other acts violating the provisions of these measures.
[1] The author's perspective
Some may think that surrogacy should be allowed as long as both parties are willing and there is a genuine need. In reality, surrogacy is not that simple; it brings about a series of issues, with abandonment being just one. Other legal, ethical, health, and even social problems are also very challenging. This is why, although attitudes toward surrogacy vary across countries, it is universally controversial.
The recent incident involving a celebrity suspected of "surrogacy and abandonment" has drawn such widespread attention, keeping those involved almost constantly on trending lists, not merely because of netizens' curiosity and fascination with celebrity gossip. This incident has exposed the surrogacy industry chain, laying bare the problems and controversies behind surrogacy, as well as the clash of law, ethics, and human emotions. The words that stung netizens—"abortion," "abandonment," "having others adopt"—reveal a disregard for life, prompting the question: Is this a collapse of morality or a lack of humanity?
