Who are my parents? Determining parenthood of surrogate children under Chinese law

Abstract

ABSTRACT The underground domestic surrogacy market is an open secret in China and many rich Chinese people have had their own children by using overseas surrogacy services. Although the Chinese national legislature has not expressed its legal position with respect to the legality of surrogacy, courts have taken an increasing number of surrogacy disputes in the past two decades, a substantial portion of which dispute over parenthood of surrogate children. The question ‘who are my parents’ requires a legal answer; otherwise, surrogate children will be left in legal limbo in terms of their parentage and sometimes nationality as well. Given its theoretical and practical significance, this article systematically analyses the issue of parenthood of surrogacy children under Chinese law and its implications for the issue of the legality of surrogacy. It finds that Chinese law, which accepts a three-parent model in certain circumstances, has recently creatively developed a dual approach to solving this legal question: the dominant biological connection test and the supplementary test of ‘constructive parenthood based on the stepparent-stepchild relationship’, the latter enabling courts to grant parenthood to a nonbiological intended parent. After assessing the dual approach, it further argues that the approach results in a backdoor acceptance of surrogacy arrangements and Chinese law, therefore, should face up to the increasing demand by infertile families for surrogacy and draw a clear line between lawful and unlawful surrogacy arrangements in accordance with the prevailing ethical views, the newly introduced three-child policy, and the relevant policies concerning woman and minor protection.