Legal position of the intended mother of the child born through surrogacy

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Legal position of the intended mother of the child born through surrogacy

- A study on custody cases of China with the reference to European practices

Kun Pang pangkunne@gmail.com

13586602

Mastertrack: European private law Name of supervisor: Candida Leone

Date of submission: 15.07.2022

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Table of Contents

I. Introduction...4

II. The legal framework of surrogacy in China...6

1. Regulations on surrogacy conduct... 7

2. Legislation on the validity of surrogacy contracts... 9

3. Case analysis on custody and the recognition of the maternity... 12

3.1 Who is the legal mother in surrogacy?...15

3.2 The formation of maternity : quasi-kinship...17

3.3 the only carrier of the consequences of illegal surrogacy... 24

3.4 Reflections on case analysis of China...27

III. A glance of European practices...30

Disadvantaged position of the intended mother: CASE OF A.M. v. NORWAY...31

1.1. Case Summary ...31

1.2 Norway's legal attitude towards surrogacy... 32

1.3 Legal relationships between intended parents (the applicant and E.B.) and child X...32

1.4 The possibilities of establishing maternity1.4.1 Adoption...33

1.5 The consideration of child’s best interests and the margin of appreciation...34

1.6 The disadvantaged position of the intended mother...35

IV. Conclusion... 37

References... 40

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Abstract

This article is aiming to discuss the intended mother's legal position in Chinese cases of which the key issue is custody of the child born through surrogacy, with a reference case of ECtHR which plays a supporting role of the main findings. While the intended father naturally gains paternity, there appear to be several constraints and criteria for an intended mother to overcome or fulfill if she wishes to be in a totally equal situation when battling for custody. Many elements may put a shadow on her situation, including the surrogacy prohibition, the patriarchal attitude lurking behind the discretion, and even the father himself.

1. The void of the contract results in the fact that the intended mother has no access to claim motherhood under the terms of a surrogacy contract and the natural mother of the surrogate children cannot be determined by the content of the contract.

2. Due to the obsolete patriarchal mindset, in the custody dispute between intended parents, the fathers always win.

3. Whether an intended mother can acquire maternity is unfairly influenced by the biological father. To establish a quasi-kinship with the surrogate child, the possible ways for the intended mother all require a marital relationship with the intended father, or in need of his consent.

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I. Introduction

This article is based on a study of Chinese surrogacy cases, focusing on the intended mother1's legal position in cases in which the key issue is custody of the child born through surrogacy, with a reference case of ECtHR which plays a supporting role in the findings of cases in China. It is aiming to discuss that in the current situation, how would the legal position of the intended mother may influence her from getting the parental rights and the child’s custody in practice.

In the Advisory opinion(2014)2 of ECtHR, the importance of recognizing the intended mother was highlighted. And in the case MENNESSON v. FRANCE3, based on which the advisory opinion was made, motherhood is constructed as a derivative of fatherhood. Mrs Mennesson’s parentage arose in the context of a marriage with the biological father. As Margaria observed in her article “Parenthood and Cross-Border Surrogacy”, Fatherhood has typically been seen as a mediated relationship rather than an independent, direct link between the father and his kid. However, legal fatherhood is assigned by biology, and the (marriage) tie between the intended parents emerges as one of the reasons that qualify the intended mother's relationship with her children for legal recognition.4 Differ from the situations of the intended mother, where the father provides the sperm, fathers who are genetically related to the child are often recognized as biological fathers,5 whereas the intended mother are usually unable to be recognized as having the maternity of the surrogate child, no matter she

1 Since through the following analysis, China holds a disapproval position on surrogacy, thus here the legal position of the intended mother has based on the background that the nation bans surrogacy, or at least shows disapproval towards surrogacy.

2 ADVISORY OPINION, concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother. GRAND CHAMBER,

https://hudoc.echr.coe.int/fre?i=003-6380464-8364383

3 MENNESSON v. FRANCE, 65192/11, https://hudoc.echr.coe.int/eng?i=001-145389.

4 Margaria, A. (2020). Parenthood and Cross-Border Surrogacy: What Is “New”? The ECtHR’s First Advisory Opinion.

Medical Law Review, 28(2), 412–425. https://doi.org/10.1093/medlaw/fwz042

5 Possible reasons for the rarity of cases where only the father is not genetically linked are that if the husband is infertile and the wife can become pregnant, the procedure of purchasing sperm and performing artificial insemination is justified in many countries. Since the fathers in the accessible cases of China (as well as in A.M. vs Norway) are all genetically linked, here in this article the discussion is based on the premise that the father is genetically linked.

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is genetically related to the child or not. It seems that “the ‘privilege’ of recognition is extended to the intended mother not only as a result of her involvement in the children’s lives but also in her capacity as the wife of the biological father.”6

So what happens in these families after the intended parents have overcome the hurdles and confirmed or established the parent-child relationship through court decisions or other legal means?7 Like many couples whose lives are marked by friction, intended parents are often subject to additional stress and conflict. Many intended parents who have longed to have a child together through surrogacy eventually choose to separate. When the family of a surrogate child breaks up, the question arises as to the custody of the child born through surrogacy.

The existence of a legal parentage between the claimant and the child is an influential factor.

In the present study, the importance that judges attach to legal parenthood is particularly evident in Chinese cases. It is stated explicitly in the Civil Code of the People's Republic of China (2020) of the equal rights on custody. According to Article 1058, "Both husband and wife equally enjoy the rights to support, educate and protect their minor children, and shall jointly assume the duties to support, educate, and protect their minor children.” Nevertheless, while the intended father naturally claims the paternity, if an intended mother wants to be at a completely equal situation when fighting for custody, there appears to be loads of restrictions and requirements for her to overcome or fulfil. In the meantime, many factors may cast shadow on her situation: the consideration of the ban of surrogacy, the patriarchal mindset lurks beneath the discretion, and even the father himself.

In order to further the reader's understanding of the core issues discussed in this article, the paper first provides an overview of the current legal framework of China in relation to surrogacy, leading to the conclusion that although there are no explicit legal provisions, surrogacy is generally banned in China. On this basis, the paper analyses the existing surrogacy cases involving the determination of maternity and custody, which shows the main

6 Margaria, A. (2020). Parenthood and Cross-Border Surrogacy: What Is “New”? The ECtHR’s First Advisory Opinion.

Medical Law Review, 28(2), 412–425. https://doi.org/10.1093/medlaw/fwz042

7 In practice, there are many cases of same-sex couples engaging surrogates, but since same-sex marriage is not currently recognized in most parts of China and there are not enough accessible cases, this article will only discuss the situation of heterosexual couples engaging surrogates.

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type of surrogacy-related dispute in China is the intended mother against the intended father(or related third parties) for custody. The analysis consolidates cases on the determination of the intended mother's status in surrogacy, with other related cases’ support to the analysis of these cases. During the decision-making, the legal position of intended mother were illustrated, and further finding shows that whether the intended mother has formed maternity with the surrogate child or not is found essential and with great influence for the mother to get custody.

II. The legal framework of surrogacy in China

Many signs have shown the unfavourable attitude of China towards surrogacy. The State Council has shown its position of prohibiting surrogacy through Action plans more than once8; many court decisions have stated their disapproval of surrogacy9; the official state-run media has expressed the attitude of prohibiting surrogacy10, and the social voting data on surrogacy also shows that the general public does not accept surrogacy11. However, in the current Chinese legal system, it still remains a legal gap in surrogacy.

8 12 departments including the National Health and Family Planning Commission issued a notice that from April 2015 to the end of December, a special campaign against surrogacy will be launched nationwide. The main task is to seriously investigate and punish medical institutions and intermediaries that illegally provide human-assisted reproductive technology services and relevant responsible persons.

The "China Action Plan Against Human Trafficking (2021-2030)" issued by the General Office of the State Council on April 28, 2021 pointed out that ① it is strictly forbidden to enter the hospital for medical treatment and childbirth in the name of others. Severely crack down on illegal acts such as surrogacy.

9 “The state's position on the prohibition of surrogacy is clear” - Chen Ying v. Luo Rongkeng(2015), Shanghai First Intermediate People's Court

10 State-run media, such as People's Daily, Xinhua News Agency and the Central Committee of the Communist Youth League of China. As introduced in the Introduction of this article.

11 In a nationwide poll conducted by the Guangzhou Social Opinion Research Centre in 2013, as many as 67% of respondents are not supporting "couples who are unable to have children finding a surrogate mother to have a child”.

In an opinion poll launched by the People's Daily in February 2017 on whether surrogacy should be legalized, 81.5% of people chose not to support it, while supporters accounted for only 13% and another 5.5% chose neither to support nor oppose.

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1. Regulations on surrogacy conduct

There is only one departmental regulation expressly referring to the prohibition and restriction of surrogacy. In 2001, the National Health Commission (formerly the Ministry of Health) issued Administrative Measures for Assisted Human Reproductive Technology (the 2001 Measure hereinafter):

Article 3

[…] The sale and purchase of gametes, congeners and embryos in any form shall be prohibited. Medical institutions and medical personnel shall not perform any form of surrogacy techniques.

As shown, the 2001 Measure’s scope is very limited. It is necessary to understand the nature of departmental regulation here. As a document published by ministries composing the China State Council - the highest administrative organ of China - it can only play a role in the specific scope within the management of that certain ministry. On the one hand, the subject of this prohibition is limited to “Medical institutions and medical personnel”, therefore theoretically it is not applicable to other entities, or individual who commissions surrogacy.

This legal gap was widely taken advantage of by the private surrogate agencies. Some of the agencies managed to find medical facilities and surrogate mothers inside China, and there are also agencies seeking surrogacy abroad to avoid risks. They offer assistance for the client with visa processing, finding a surrogate mother, IVF and third party assisted reproduction (surrogacy) services. 12 Similar situations are also mentioned in cases time and again13.

12 Wang, S. (2020). Surrogacy, wandering in a grey area. Retrieved from https://new.qq.com/omn/20210118/20210118A0E2RH00.html

13 Sample cases as follows:

Zhang Si vs Mattel Overseas Medical Travel Group Ltd. ((2020)粤 01 民终 16040 号), Chinese Judgments Online, https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=345b4b771d1c487e8473ac4600fc9a c6, Accessed 3 May 2022.

Gao Li vs Li Jie ((2017)鲁 14 民终 1863 号), Chinese Judgments

Online, https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=e77fbc41d0374ae7a90ca81c 017cfdb1, Accessed 3 May 2022.

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On the other hand, although the Measure, as a departmental regulation, does have a legal effect in administrative Law scope, it cannot be regarded as an binding legal basis in cases concerning civil disputes or criminal law issues. Still, since there is no existing provision that generally regulates the conduct of surrogacy in the Civil Code, this administrative provision is still widely used in court decisions to express the illegality of surrogacy, usually appearing as supportive arguments in the reasoning of Decisions. In a notable case called Chen Ying v.

Luo Ronggeng (2015), Shanghai First Intermediate People's Court stated that:

“(Art.3 of the 2001 Measure) Although it is a departmental regulation and cannot be used as a legal basis to confirm the legal status and custody of surrogate children, the state's position on the prohibition of surrogacy is clear.”14

A disappointing truth is that in fact, Article 3 of the 2001 Measure can hardly even regulate the surrogacy market effectively. According to the analysis of administrative penalty cases by Xiao and others, “The sanctions imposed by the public health authorities included confiscation of ill-gotten gains, revocation of licenses of both the institutions and personnel involved, and fines. Compared to the huge profits made, the fines are relatively low and insignificant. […] A lenient fine like this will hardly serve a punitive or deterrent purpose.”15 It shows that effective restriction of surrogacy still requires higher level specific legislation, which also needs to regulate the rights, obligations and responsibilities of the surrogate and all parties involved in the actual occurrence of surrogacy.

Yet legislators seem to have deliberately avoided a direct legislative ban on surrogacy. In the (Draft) Law of the People's Republic of China on Population and Family Planning of 2015 it was clearly stipulated that “surrogacy in any form is prohibited", but this provision was removed from the officially adopted Law. Multiple reasons are deduced for this removal.

14 Chen Ying vs Luo Ronggeng ((2015)沪一中少民终字第 56 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=733844c7af30441eaf1ba420688e161 2, Accessed 10 April 2022.

15 Yongping Xiao, Jue Li, Lei Zhu, Surrogacy in China: A Dilemma Between Public Policy and the Best Interests of Children, International Journal of Law, Policy and the Family, Volume 34, Issue 1, April 2020, Pages

1–19, https://doi.org/10.1093/lawfam/ebz018

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2. Legislation on the validity of surrogacy contracts 2.1 provision

Although the surrogacy departmental regulation cannot be used as a legal basis in court, there are provisions referring to public order and good morals in the Civil Code can be directly applied in relation to the validity of surrogacy contracts.

Article 153

[…] A juridical act contrary to public order and good morals shall be void.

Article 1009

Medical and scientific research activities concerning human genes and human embryos, among others, shall be carried out according to the laws and administrative regulations, and relevant provisions issued by the state, without endangering human health, violating moral principles, or damaging public interests.

In practice, Article 153 of the Civil Code of the People's Republic of China (2020) can be seen in almost every decision on the issue of the legality of the surrogacy contracts.

2.2 case law

In recent years, the number of surrogacy-related cases has increased significantly in line with the rising concern of Chinese society about the phenomenon of surrogacy, the promotion of the legal document online disclosure work and the increase in legal awareness. As of April 12, 2022, there were 447 cases found by the keyword "surrogacy" on Chinese Judgment Online16, of which 2022 (1), 2021 (55) and 2020 (136) cases were published in the last three years (As shown in Table 1). Of these cases, 312 were related to surrogacy contracts, mainly involving property disputes arising from commercial surrogacy practices and the validity of surrogacy

16 Chinese Judgments Online (https://wenshu.court.gov.cn/), the official central judgements publication website of China.

The Supreme People's Court has required that lower courts must upload judgments for publication to it since January 1, 2014.

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contracts. Besides, cases which is actually irrelevant to surrogacy disputes exist in a large number, for example, where surrogacy is only mentioned as:

1) Referring to surrogacy costs as an evidence to prove that the profit of the factory were used for the couple's joint life.

2) Whether the act of commissioning a surrogate together constitutes a de facto marriage.

3) Dispute over breach of contract for ‘immigration services’(in fact it is the dispute between intended parents and the surrogacy agency), the defendant provided overseas maternity and monthly care services for surrogate mothers.

4) Disputes on the contract for medical services and storage for frozen embryos (surrogacy haven’t happened yet. But the court criticized that these frozen embryos can only be used for illegal surrogacy).

5) Referring to surrogacy as a way of how the claimant earns a living, etc.

As it has shown, surrogacy appears to be in so many other cases as a daily matter. In the current society of China, it is not far away from daily life and acts as an illegal but open secret.

Further research on the cases relevant to surrogacy revealed that, although there were still decisions in the early years that held surrogacy contracts valid17, in recent years courts at all levels have largely reached a consensus that surrogacy is contrary to public order and good morals and is therefore void. Article 153 of the Civil Code has been interpreted to entail the illegality of surrogacy contracts, and the courts have further solved most disputes over surrogacy fees under Article 157 of the Civil Code18.

17 Through the analysis by Chunyan Ding in Surrogacy litigation in China and beyond, the surrogacy contract was regarded as valid in one case in 2010, as shown in the original footnote 29, “A Woman in Changde Undertook Surrogacy and Triggered a Fight for Child, and the Court Confirmed Validity of the Surrogacy Contract (常德女子代孕引发夺子大战 法 院判决代孕协议有效), HUNANHONGWANG (湖南红网), Aug. 18,

2010, http://unn.people.com.cn/GB/14778/21707/12468135.html (accessed Dec. 18, 2014).”, also referred to case 7 of Ding’s article. However, due to the length of time, this page has already expired, thus the original reference is unable to be traced.

18 Civil Code of the People's Republic of China(2020)

Article 157 After a juridical act is void, revoked, or determined as having no binding force, the property obtained by the actor as a result of the act shall be restituted; if restitution is impossible or unnecessary, indemnification shall be made at an estimated price. The party at fault shall compensate the other party for any loss suffered as a result of the act; or if both parties are at fault, they shall assume corresponding liabilities respectively, except as otherwise provided for by any law.

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An even more problematic issue is that in commercial surrogacy contracts, surrogate children are in fact regarded - sadly - as the ‘ subject matter ’ of the sale agreement between the parties. Having a child is the final aim of the whole surrogacy conduct, nevertheless, while most financial disputes such as the restitution of payments and expenses may be solved by proving the invalidity of the contract, the issue based on the identification of the parties in surrogacy can be much more controversial.

In a research of Chunyan Ding in 2015, a collection of ten sample cases between 2004 and 2012, based on surrogacy was presented.19 The majority of these listed cases involved commercial surrogacy, and it is found that the common cause of action in surrogacy cases was sole care and control (and maintenance) of the surrogate child20, while one case claimed for parenthood, and 2 for visitation. In the meantime, 8 out of 10 cases in Ding’s analysis are traditional surrogacy. To continue from where Ding has stopped, here in this article a total of 12 accessible surrogacy cases (between 2013 and 2021) were obtained by searching for

"surrogacy" and "custody" by keywords on Chinese Judgments Online. After excluding the irrelevant results, a total of four highly relevant and recent-dated surrogacy cases in which the claimant is the intended mother in table 2 were selected for further analysis, and the references to cases in table 3, as well as the findings from Ding’s case analysis can further

19 Chunyan Ding, Surrogacy litigation in China and beyond, Journal of Law and the Biosciences, Volume 2, Issue 1, February 2015, Pages 33–55, https://doi.org/10.1093/jlb/lsu036

20 Chunyan Ding, Surrogacy litigation in China and beyond, Journal of Law and the Biosciences, Volume 2, Issue 1, February 2015, Pages 33–55, https://doi.org/10.1093/jlb/lsu036

Table 1

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support the main arguments of the article. Among the cases of parentage disputes in recent years, the majority of cases are based on the issue between intended parents (or one of the intended parents against the other’s relatives) , with a focus on custody, visitation and the recognition of maternity. Since there is no existing cases in China that the intended father is not genetically related and in all cases where contain a genetically connected father he is always be recognized as the biological or natural father with no doubt, here in this article will classify and analyze cases by genetic relation between the intended mother and the surrogate children.

Based on this consideration, in the following section an analysis will be presented of cases relating to custody, in behind of which is the issue of the recognition of the maternity.

Through this research, we will therefore have a reflection on the legal position of intended mother in surrogacy-child related cases against the intended father.

3. Case analysis on custody and the recognition of the maternity

Table 2

Case No. Surrogacy

type

Claimant Key claim(s) decision Feature

Zhang vs Mo

(2021) 陕 0929 民 初 970 号

gestational surrogacy

intended mother (genetically related)

Confirmation of legal parentage

The claimant Zhang was the biological mother of Jr.Mo and parentage existed between the parties

Consideration of the best interest of the child

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Chen Ying vs Luo Ron ggeng

(2015) 沪 一 中 少 民 终 字 第 56 号

gestational surrogacy

intended mother (not genetically related)

custody Quasi-kinship established;

Custody gained.

First case based on the best interest of the child

Claimant is neither genetical or gestational related to the children

Quasi-kinship established

Lu vs OA (2017)

0106 民 初 5067 号

gestational surrogacy

intended mother (not genetically related)

Custody;

Confirmation of legal parentage

Quasi-kinship not

established.

Do not have custody

Claimant is neither genetical or gestational related to the children

Quasi-kinship not

established

Shen vs W ang

(2019) 沪 02 民 终 10045

gestational surrogacy

intended mother (not genetically related)

Confirmation of legal parentage

Quasi-kinship not

established

Claimant is neither genetical or gestational related to the children

Quasi-kinship not

established

Table 3

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Case No. Surrogacy type

Claimant Key claim(s) decision Feature

Xie vs Gao (2018) 渝 05 民终3328 号

traditional surrogacy

surrogate mother

Visitation Not

appropriate to support the claimant’s visitation request at this time.

consideration of the healthy development of children

Zhao A vs Zhao B

(2017) 沪 02 民终7243 号

traditional surrogacy

surrogate mother

custody Do not have custody

Referred to the article about custody

in the

(invalid) surrogacy contract

Xue vs Ma (2019)

0108 民 初 50537 号

gestational surrogacy

surrogate mother

custody Cannot have the custody due to the reason that she is not the biological mother

Surrogate mother lost the case due to not genetically related.

Hu vs Wang

(2020)湘 02 民终2270 号

gestational surrogacy

\ Breach of

contract

\ A de facto

adoption has formed between the intended mother and the child

The cases in Table 2 are the ones that are the focus of this study. What they have in common is a custody dispute between intended parents over a child born through surrogacy, where the claimant is the intended mother and the defender is the intended father (or the third parties related to the father) who is genetically connected to the child.

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The rights of the intended mother may be affected if her legal position as a "mother" in regard to the kid is unclear. As a result, while the intended mother is the "mother" who intends to look after the surrogate kid as her own, she is the mother who is having the greatest trouble establishing a mother relationship.21 For the intended mother, according to whether she is genetic related to the child, it can be divided as genetically connected and non-genetically connected.

The genetically connected cases are used to indicate the general criteria for the recognition of natural mother. The other three cases where the intended mother was not genetically connected were mainly combined with adoptions.

3.1 Who is the legal mother in surrogacy?

The question of who is the legal mother of a child, the genetically connected intended mother or the surrogate mother, has always been a practical dilemma. In genetically related cases, surrogate mother is different than the ovum provider (who shall be the intended mother here).

This type of surrogacy raises the dispute between the surrogate mother and the intended mother, about who should be regarded as the natural mother. Despite having agreed to deliver the child to the intended mother following birth, the surrogate mother is physically, socially, and legally regarded as the child's mother in many jurisdictions.22 However, according to the decisions made by Chinese court, it is still with doubt whether the same tendency applies.

In the research here, there’s only one case founded which involves an genetically connected intended mother. In Zhang vs Mo23, where the key issue is the confirmation of mother-child relationship, the intended mother Zhang, whose ovum was used for surrogacy procedure, was

21 CLAIRE ACHMAD. (2017). MULTIPLE “MOTHERS,” MANY REQUIREMENTS FOR PROTECTION: Children’

s Rights and the Status of Mothers in the Context of International Commercial Surrogacy. In Reassembling Motherhood (p.

55–). https://doi.org/10.7312/erga17050.8

22 CLAIRE ACHMAD. (2017). MULTIPLE “MOTHERS,” MANY REQUIREMENTS FOR PROTECTION: Children’

s Rights and the Status of Mothers in the Context of International Commercial Surrogacy. In Reassembling Motherhood (p.

55–). https://doi.org/10.7312/erga17050.8

23 Zhang vs Mo ((2021)陕 0929 民初 970 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=3d51e946320f42118dffadb000d7165 1, Accessed 16 April 2022.

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admitted to be the legal mother of the child. The court further stated that the surrogate mother is merely following the arrangement to complete the act of 'surrogacy' and has no desire or claim to support the child born, and her current identity is unknown, therefore shall not be regarded as the legal mother. The only case of gestational surrogacy presented in Ding’s research24 shows a similar attitude: the court held that the surrogate mother was

“merely the gestational mother rather than the biological mother of the surrogate child and she had no parenthood right, let alone the right of sole care and control.” However - unlike the more recent case Zhang & Mo - in this case the court hesitated to explicitly state that the intended mother was the legal mother.25

Another case in Table 3, of which the claimant is the surrogate mother, can also support the gene connection arguement. In case Xue vs Ma26, Mr. Ma and Ms. Xue went to Thailand in March 2018 and used purchased eggs with sperm provided by Ma for artificial insemination and the embryos were transferred to Xue's womb. Ma and Xue did not have any relationship or intention of raising the child together. As Ma claimed, Xue is a surrogate mother. When Xue was fighting for her custody against the biological father, it appeared to be one of the reason that she didn’t gain the custody, that there is no biological connection between her and the child, even if she was the one who give birth to the child.

It is shown that the Chinese courts appear to place great importance on genetic links. In Ding’s opinion, the biological connection between the legal mother and the child even seems to be “the underlying basis for legal motherhood in Chinese law”.27 However, the current available cases are still far from enough to indicate that in China it is a general consideration that genetically connected mother would be regarded as the legal mother of a surrogate child.

There is non-existing cases based on the disputes between surrogate mother and the genetically connected mother. In the meantime, in case Zhang vs Mo, the genetically

24 Case 7, Chunyan Ding, Surrogacy litigation in China and beyond, Journal of Law and the Biosciences, Volume 2, Issue 1, February 2015, Pages 33–55, https://doi.org/10.1093/jlb/lsu036

25 Chunyan Ding, Surrogacy litigation in China and beyond, Journal of Law and the Biosciences, Volume 2, Issue 1, February 2015, Pages 33–55, https://doi.org/10.1093/jlb/lsu036

26 Xue vs Ma ((2019)京 0108 民初 50537 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=592bdd2b1668494586adab93000d9a da, Accessed 16 April 2022.

27 Chunyan Ding, Surrogacy litigation in China and beyond, Journal of Law and the Biosciences, Volume 2, Issue 1, February 2015, Pages 33–55, https://doi.org/10.1093/jlb/lsu036

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connected intended mother only want to ensure her visitation right, which is included in the parental rights and thus claimed for the confirmation of mother-child relationship. The child still remained under the father’s custody. There is no accessible case that can show the judgement of the court when the genetic mother fights for custody of the surrogate child against the genetic father, and whether the genetic mother would be at disadvantage due to she was not the one who delivered the child.

3.2 The formation of maternity : quasi-kinship

As the most controversial situation of recognition of the parentage, the feature of a non-genetic-connection intended mother was that she is neither genetically connected nor the one who delivered her children. Due to the lack of necessary requirements, the claimants cannot be regarded as the natural mother of the surrogate child and therefore naturally gain the right of parenthood. The typical ways for them to obtain the recognition of maternity and gain parental rights is through forming a quasi-kinship between the mother and the child (adoption, stepmother-child relationship), during which procedure the discretion of the judges plays a significant role in determining whether parenthood can be formed. In the meantime, for this type of case, the judgments are also greatly influenced by the principle of the best interest of the child.

3.2.1 Adoption

Adoption is a possible way for the intended mother to establish maternity of a child born through surrogacy. In China, according to article 1111 of the Civil Code28, “As of the date of establishment of the adoptive relationship, the provisions governing the relationship between parents and children as set out in this Code shall apply to the rights and duties between adoptive parents and adopted children.” Thus once the legal procedure of adoption is completed and the child is successfully adopted, the intended mother would be regarded as the legal mother and there will be no more controversy about the legal relationship between

28 Civil Code of the People's Republic of China(2020)

Article 1111 As of the date of establishment of the adoptive relationship, the provisions governing the relationship between parents and children as set out in this Code shall apply to the rights and duties between adoptive parents and adopted children; the provisions governing the relationship between children and close relatives of their parents as set out in this Code shall apply to the rights and duties between adopted children and close relatives of the adoptive parents.

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the mother and the child. It is worth mentioning that adoption is also a way to establish legal relationship between the intended mother and the surrogate children in many other legal systems. Such as in Europe, according to a comparative-law survey carried out by European Court of Human Rights (ECtHR hereafter) covering forty-three States Parties to the Convention (France excluded), there are nineteen States29 that allowed the intended mother to obtain the maternity of a non-gene-related surrogate child.

Theoretically, both genetically (but not recognized as the natural mother) and non-genetically connected intended mother are able to form maternity through adoption. While the father who provided sperm for surrogacy arrangement naturally become the legal father, the genetically related intended mother as the ovum provider is not guaranteed to be regarded as the natural mother, adoption might also be the possible way for her to form a mother-child relationship under the circumstances where she’s not recognized. For example, when the surrogate mother is recognized as the natural mother. However, due to there is no existing common standard for whom is meant to be the natural mother in surrogacy cases, there would be another trouble: the genetically related mother can only make it sure that whether she is recognized as the natural mother after the decision is made by the court.

To adopt a child shall follow the requirements and limitations of the Adoption Law of China, which is now Chapter V of the Civil Code (2020). As stated in Article 109330, the minors that can be adopted should generally be orphan or without parents who can support them.

Considering the surrogacy cases, so far in practice China has never considered a surrogate

29 “In nineteen of the forty-three States (Albania, Andorra, Armenia, Azerbaijan, Belgium, the Czech Republic, Finland, Georgia, Germany, Greece, Luxembourg, the Netherlands, Norway, Russia, Slovenia, Spain, Sweden, Ukraine and the United Kingdom), including seven which prohibit surrogacy arrangements (Finland, Germany, Luxembourg, Norway, Slovenia, Spain and Sweden), it is possible for the intended mother to establish maternity of a child born through a surrogacy arrangement to whom she is not genetically related.”

Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, 10/04/2019,

https://hudoc.echr.coe.int/fre?i=003-6380464-8364383

30Civil Code of the People's Republic of China(2020) Article 1093 The following minors may be adopted:

(1) Orphans bereaved of parents.

(2) Minors whose natural parents cannot be ascertained or found.

(3) Children whose natural parents are unable to support them due to unusual difficulties.

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child as an orphan, and it is confirmed by the practices that genetically related intended father is the natural father of the surrogate children. Thus as long as there is no declaration of absence or death of the biological father, the surrogate child would at least has one natural parent.

Among the exceptions of this Article, the only one that a intended mother may fulfiled is under Article 110331, which means as an intended mother, the only way for her to establish maternity through adoption is to have the consent of the natural parent(s), as a stepmother:

Article 1103 A stepfather or stepmother may adopt the stepchild with the consent of the natural parents of the stepchild. [...]

This clearly can be an obstacle for the intended mother. If the intended mother is no longer the stepmother of the child (divorced) or the natural parents do not agree to let her adopt the child (which is highly possible when there is potential or already existing disputes on custody between the intended patents), the intended mother would have no chance of adopting the child. Such as in case Chen Ying vs Luo Ronggeng, it was found by the trial court that “due to the lack of statutory requisites, a legal adoption relationship cannot be established between the claimant and the children.”32

Beside the legal limitations, there are other practical obstacles for the intended mothers.

Many intended mothers, especially the ones are genetically related, are even registered as the legal mother on the birth certificate of the child. It would rise confusion when proceeding the adoption and the request might be rejected if the civil affairs department of the government figures that she “already is” the mother. And after the court finally made it clear that who should be regarded as the natural mother, it will be too late for the intended mother to go through adoption procedure after the judgement anyway.

31Civil Code of the People's Republic of China(2020)

Article 1103 A stepfather or stepmother may adopt the stepchild with the consent of the natural parents of the stepchild, and is not required to be subject to the provisions of subparagraph 3 of Article 1093, subparagraph 3 of Article 1094, Article 1098, and paragraph 1 of Article 1100 of this Code.

32 Chen Ying vs Luo Ronggeng ((2015)沪一中少民终字第 56 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=733844c7af30441eaf1ba420688e161 2, Accessed 10 April 2022.

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There were also questions raised about whether a de facto adoption between intended mother(stepmother) and the surrogate child can be established33. De facto adoption is an act where the parties meet the conditions set out in the law and openly live together as adoptive parents and children on a permanent basis without the adoption being notarised or registered.

There are certain conditions should be met:

Both parties to the adoption must meet the conditions set out in the law. Theoretically, the subject of de facto adoption is not limited to the step-parent-child relationship. But as the reasons we have already mentioned above, an intended mother must be the stepmother to adopt the biological father’s child, who is born through surrogacy.

(2) The adopter and the adopted person openly acknowledge their relationship as adoptive parents and children, are referred to as parents and children and are recognised as such by the public and relevant organisations, and the fact that they have mutual support.

(3) The fact that the adoptive child and the natural parents have terminated the relationship of rights and obligations between the parents and the child. However, this is not a must under the circumstances of Article 1103.

(4) The adoption has not been notarized or registered. China recognizes the legal validity of de facto adoption and protects it.34

Out of the public policy consideration of banning surrogacy activity, in Chen Ying vs Luo Ronggeng, the answer from both the appellate court and the trial court was negative. This case and relevant issue would be further discussed afterwards, but it is worth mentioning here that in the judgment, the appellate court stated that:

“Recognizing the relationship as de facto adoption would produce the practical effect that parentage has transferred from the surrogate to the intending mother. This is tantamount to giving tacit approval of surrogacy, incompatible with the express prohibition of surrogacy currently in force in China.”35

33 Yongping Xiao, Jue Li, Lei Zhu, Surrogacy in China: A Dilemma Between Public Policy and the Best Interests of Children, International Journal of Law, Policy and the Family, Volume 34, Issue 1, April 2020, Pages

1–19, https://doi.org/10.1093/lawfam/ebz018

34 Zou Yu. Dictionary of Jurisprudence: China University of Political Science and Law Press, 1991.12

35 Chen Ying vs Luo Ronggeng ((2015)沪一中少民终字第 56 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=733844c7af30441eaf1ba420688e161 2, Accessed 10 April 2022.

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However, there are also recent cases applied de facto adoption of the surrogate child. In Hu vs Wang36(Table 3), a case about contract of carriage disputes, one of the contract parties E.B, who was the husband of Hu and biological father of Yi, the child born through gestational surrogacy, passed away and left the contract unpaid. Hu, as the legal representative of Yi, stated that Yi would refuse to inherit and would not be liable for any debt of E.B. Then the defendant provided evidence of surrogacy to prove that there is no legal mother-child relationship between Hu and Yi hence she is not the legal representative of Yi. In the decision, Zhuzhou Intermediate People's Court stated in 2020, as follows:

“(The evidence provided by the defendant) only proves that the appellant Hu is not the genetic mother of Yi (the child who is born through surrogacy), but cannot deny the mother-child relationship between Hu and Yi in the legal sense, because the mother registered on Yi's birth certificate is Hu, and Yi has been raised by Hu after birth, the two have formed a de facto adoption relationship.”

As it has shown, although the key issue of Hu vs Wang is neither about surrogacy nor the parentage, it can still reflect that in China, the recognition of de facto adoption highly depends on the discretion of the judges.

In the next part let us take a deep look into the cases in Table 2. Under the three cases, none of the intended mother is genetically connected to the child and none of the former legally adopted the latter. Therefore, all of the courts have to consider what’s the existing relationship between the mother and the child in question, and whether they can form a de facto adoption or step-parent-child relationship.

3.2.2 Step-parent-child relationship

A step-parent-child relationship usually formed when the biological parents die or divorce and the other parent remarries with their child. Therefore in most of cases, the child was born before the new marrige and was brought into the new-formed family. In Chen Ying vs Luo

36 Hu vs Wang ((2020)湘 02 民终 2270 号), Chinese Judgments

Online,https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=c95e2221f64d4ea0b832ac98 00d535af, Accessed 10 May 2022.

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Ronggeng, the appeal court brought up the question of whether can a step-parent-child relationship be formed after the marriage, between a non-marital child of one of the parties and his or her spouse, and the final decision gave positive answer, with the consideration of the child’s best interests. It admitted the existance of maternity, which became one of the base stone that helped the intended mother to get the custody.

Published in 2015, Chen Ying vs Luo Ronggeng was a typical case for the protection of the best interests of the child and led to heated discussions on surrogacy cases in China.

Although due to the legal system there is no tradition of case law in China, this case has a landmark role and has a certain degree of influence on the judgments of other courts.

After the marriage, Luo A and Chen had twins, Luo B and Luo C, through the purchase of another person's eggs and the use of Luo A's sperm to inseminate a surrogate. The two children were born to live with Luo A and Chen. On February 7, 2014, Luo A died due to ineffective rescue, and since then, Chen has lived with Luo C and Luo B. On December 29, 2014, Luo Ronggeng and Xie, the parents of Luo A, filed a custody lawsuit against Chen.

The trial court’s opinion was that the act of surrogacy itself was not legal, and it is difficult to determine that - after obtaining the opportunity to raise the child because of this kind of illegal act - the two parties can form a de facto adoption. Therefore there is no stepmother-child relationship between Chen and Luo B and Luo C (the children). In the case of the death of biological father Luo A and the biological mother is unknown, in order to fully protect the legitimate rights and interests of the minors, Luo Ronggeng and Xie were allowed to claim custody of the children as grandparents. This decision in fact did not fully consider the best interests of the child. Since Luo Ronggeng and Xie are already elderly and have difficulty caring for two four-year-old children, plus that they have repeatedly expressed their insufficient ability and intended to entrust the child to the child's aunt, who is far away in the United States. From another perspective, the child has been raised and cared for by Chen since birth, and the grandparents have never raised them. Now Luo Ronggeng and Xie forcibly require the two children to leave the living environment that they are already familiar with, which is obviously not conducive to the growth of the child.37

37 Chen Ying vs Luo Ronggeng ((2015)沪一中少民终字第 56 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=733844c7af30441eaf1ba420688e161 2, Accessed 10 April 2022.

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This ruling was reversed in appeal, which held that Chen Ying was the stepmother of the children and awarded custody to her. The Court of Appeal referred to Article 3 of the UN Convention on the Rights of the Child, which establishes the principle of the best interests of the child. According to the judgment, the appellate court stated that:

“The interests of the child should be protected to the greatest extent possible when determining custody of the child.”

However, in two later cases, ‘caring and living together for a long period of time’ was not enough to be considered as fulfilling the condition of forming step mother-child relationships.

A key difference that lead to different decisions in the other cases Lu vs OB and Shen vs Wang, was that neither in these cases the intended mother was married to the father.

Combining the former discussion of the requirements of the adoption, this condition made the recognization of forming a step-mother-child relationship become almost impossible, though in both cases the mothers have actually raised the child and lived together for a long period of time. In Lu vs OA, though the father Lu resides in the United States and is unable to live and accompany his children in China for long periods of time, the court used Article 27(1) of the Civil Code, “Parents are the guardians of their minor children”, to explain the only guardian of the child OB is the biological related father. Same situation appeared in Shen vs Wang as well. Ms Shen claimed to have actually raised Wang, however, as Shen was not related to Wang's father by marriage, there was no basis of identity to create a parent-child relationship.

In the judgment, the court stated:

“However, regardless of […] whether Shen is raising Wang or not, it does not change the social and legal consequences of illegal surrogacy. There is no legal parent-child relationship between Shen and Wang.”38

It seems that the recognition of step-parent-child relationship is based on many restrictions, just as adoption. Under the current regulations, very strict rules are applied for a non-genetically related intended mother to claim maternity of the child born through

38 Shen vs Wang ((2019)沪 02 民终 10045 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=11cd6e2dfd924decb431ab7500e147 e4, Accessed 15 April 2022.

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surrogacy, and after the groundbreaking precedent in 2015, judges still tend to be conservative in their decisions. And since the consideration of the best interests of the child usually would lead to unusual, groundbreaking results, the judges in China were still very careful in applying this principle. However, there is a point that should be emphaized - since the illegal surrogacy arrangement are carried by both of the intended parents, why the intended father can always naturally father the surrogate child, while the intended mother ends up to be the only one of the intended parents that carries the consequences of illegal surrogacy?

3.3 the only carrier of the consequences of illegal surrogacy

Table 3 contains cases claimed by the surrogate mother, who is the deliver of the child. This article focuses on table 2, in which cases the intended mother is the claimant, but the references to table 3 further support the main argument of the article.

In traditional surrogacy, the children are connected to the mother both genetically and gestationally, therefore differ from the situation of both kinds of intended mothers mentioned above, there should be no doubt about the maternity in traditional surrogacy cases. Chinese courts would regard the resulting child as non-marital and the surrogate as the natural mother.39 However, one finding in the research of accessible traditional surrogacy cases is that, when it comes to the custody disputes, the courts still show a tendency to favor the father even when against the surrogate mothers in traditional surrogacy, who are legally recognized as natural mothers.

In the Table 3 above, cases Xue vs Ma, Xie vs Gao and Zhao A vs Zhao B have several similarities. (1) All three related to the legality of the surrogacy contract, especially the validity of the agreement on custody in the surrogacy contract. Decisions are generally made upon the principle set up by Article 153 of the Civil Code, the public order and good morals.40 (2) The claimants are all surrogate mothers, who, according to the Civil Code, shall

39 Yongping Xiao, Jue Li, Lei Zhu, Surrogacy in China: A Dilemma Between Public Policy and the Best Interests of Children, International Journal of Law, Policy and the Family, Volume 34, Issue 1, April 2020, Pages

1–19, https://doi.org/10.1093/lawfam/ebz018

40 Civil Code of the People's Republic of China(2020)

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be regarded as the natural mother of the child. Also in practice, none of the three courts denied the existing parenthood between the surrogate mother and the child. (3) In all three cases, the children involved are under 2 years old, who, according to the Article 1084 of the Civil Code (2020) and Article 1 of Opinions on Child Custody in Divorce Cases (1993) read as follows, shall be under the custody of mother:

Article 108441 [...] In principle, the mother shall have the custody of the children under two years of age after divorce. If the father and the mother fail to reach an agreement on the custody of their child who has reached two years of age, the people's court shall, in light of the specific circumstances of both parties, make a judgment in the best interest of the minor child. If the child has reached eight years of age, his or her true will shall be respected.

Article 142 Children under the age of two years generally live with their mothers. In any of the following circumstances, the children may live with the father:

(1) The mother is suffering from an infectious disease or other serious diseases that has not been cured for a long time, and the child is not suitable to live with her;

(2) Failing to fulfill the obligation of support, and the father requires the child to live with him;

(3) For other reasons, the child is truly unable to live with the mother.

However, in all three decisions, none of the mothers gained what they claimed for (custody or visitation). Although they are regarded as the legal mothers and the exceptions in Article 1 did not exist, the children are still considered to be under the custody of their biological father.

It seems that although in Chinese law there are only a few articles concerning child’s best interest, the courts do not always follow.

Article 153 A juridical act violating the imperative provisions of any law or administrative regulation shall be void, unless the imperative provisions do not result in the nullity of the juridical act.

A juridical act contrary to public order and good morals shall be void.

41 Civil Code of the People's Republic of China(2020)

42 Opinions on Child Custody in Divorce Cases (1993), the Supreme People's Court

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In Zhao A vs Zhao B case43, the trial court (of which the decision was upheld by the appellate court) reasoned that “According to the relevant legal provisions (Article 2 of Opinions on Child Custody), an agreement between the parents that the child under two years of age will live with the father, as long as the child's health will not be adversely affected by this arrangement, may be permitted.” This, however, can be contentious: the court treated the agreement on custody in the surrogacy contract as evidence to conclude that both parents have already agreed that the surrogate child would live under the custody of the legal father, even though the surrogate mother as legal mother later changed her mind and sued for sole care and control of the child. The court’s decision in fact only regards the surrogacy contract as only partially invalid, since the contractual clause on custody of the surrogate child remained valid and sufficiently showed that the parties had reached an agreement on the sole care and control issue.

By contrast, in Xie vs Gao44, the court first ruled that the surrogacy arrangement was invalid and unenforceable, including the contractual provision that “Xie give up the legal parentage of the child”. It is mentioned that the Agreement, which stipulates the rights and obligations between the "demander" and the "surrogate" as well as the sole care and control of the children born, is contrary to public order and morality, the spirit of jurisprudence and the provisions of the law, therefore is null and void.

The decision made by the court is meanwhile claimed to be based on the best interest of the child. According to the judgment, Xie, as Jr. Gao's biological mother, was entitled to visitation rights to Jr. Gao in accordance with the law. However, according to Article 38(3) of the Marriage Law of the People's Republic of China, the right of a parent to visit his or her child shall be governed by the principle of the best interests of the minor, i.e. if a parent's visit to his or her child is detrimental to the child's physical and mental health, the right to

43 Zhao A vs Zhao B ((2017)沪 02 民终 7243 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=6f84549bffb940a78408a83900ea6b9 3, Accessed 15 April 2022.

44 Xie vs Gao ((2018)渝 05 民终 3328 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=839aadea2c6e4eb99c38a97e0101ec4 b, Accessed 15 April 2022.

In this case, Ms Xie agreed to be inseminated by Mr Gao naturally and to give up the legal parentage of the child. The baby was moved immediately from the surrogate after it was born and Gao and his wife were recorded as the parents of the child on the birth certificate. One year later, Xie filed a lawsuit for visitation rights.

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visit shall be temporarily suspended; as Jr. Gao was not yet 2 years old, it was not appropriate for visits in situations where there are still unsolved conflicts between the relationship of two parties. Jr. Gao has lived in Gao since childhood, forming a relatively stable state of life, thus in the current situation, it is not suitable for Xie to request to visit and be with Jr. Gao during weekends. As this would not be conducive to the healthy development of Jr. Gao, it would not be appropriate to support the claimant's request for visitation at this time. This judgement can be fairly problematic considering Article 1 of Opinions on Child Custody in Divorce Cases mentioned above, but no appeal was filed.

3.4 Reflections on case analysis of China

The analysis of the above cases shows that:

1) Unlike most European cases, which focus on the issue of giving a nationality or recognizing birth certificates issued abroad, in the accessible cases of China, although the courts all emphasized the illegality of the surrogacy in the judgments, surrogate children have largely been recognized as the child of the intended parents and have lived with both or one of them. Currently there is no precedent cases found for deregistration of births. A number of ways - most of which contain illegal factors - are found to get the surrogate children nationalities, such as through the help of illegal surrogacy agencies to acquire nationality at birth in countries such as the United States45 or directly register the intended mother as ‘the birth mother’ on the birth certificate46.

2) At present, China still has a broad margin of appreciation on surrogacy cases, and has not formed a consistent criteria of judgment on the recognition of maternity in surrogate cases.

Different standards are presented for the understanding and application of the principles, as well as the way they are applied. Due to the absence of case law and the lack of

45 Lu Xiaoling vs. Shenzhen Meiji Angel International Business Consulting Co. ((2021)京 0101 民初 10647 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=b63628421f564f689e5051eb5a68e8f 8, Accessed 12 May 2022.

46 Shen vs Wang ((2019)沪 02 民终 10045 号), Chinese Judgments Online,

https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=11cd6e2dfd924decb431ab7500e147 e4, Accessed 15 April 2022.

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corresponding statutory law, surrogacy-related cases rely greatly on the discretionary power of judges and are highly arbitrary, coupled with the varying professional standards of judges at various levels of courts around the country, which may even lead to contradictory judgments and contrary to the ideal direction of academic research.

3) The influence of the principle of the best interests of the child remains weak. It is easy to see from the above cases that, excluding some cases where the best interests of the child have not been considered, courts that have considered it have often given way to other situations in applying the best interests of the child clause and principle, leading to some questionable outcomes. During the clash between Public Order and the Best Interests of the Child, since the former principle is explicitly established in the civil code of China, while the latter can be only found in a signed international treaty, it would lead to a situation that the judges always tend to use the public order over the best interest terms.

In the meantime, the most criticized aspect of the principle of children's best interests is that in the process of judicial application, the measurement of the best interests of child can be suspected of expanding the discretion of the judiciary.47 Furthermore, without the strong support of clear norms, it is difficult for legal persons to make rational judgments, and the application of this principle may end up giving in to the patriarchal mindset of the judges.

4) In surrogacy cases, the fathers always win. Both the surrogacy mother and the intended mother - no matter have a biological connection to the child or not - tend to lose the case when against the father. The determination of the parents of the surrogate children by genetic connection often leaves the father as the largest beneficiary in a parentage dispute.48 As can be seen from the above cases, the courts have followed the genetic criteria in determining the biological father and have invariably found the child to be under the custody of the father, even if the child was born as a surrogate. In the case of the recognition of the birth mother, the courts were unclear on whether the delivery of the child or the gene of the child should be the main criteria when making a decision. In such an ambiguous manner, even if a

47 Wang Guannan. (2020). Revisiting the principle of the best interests of children in surrogacy by the European Court of Human Rights. Journal of Jinzhou Medical University (Social Science Edition) (05), 8-11.

doi:10.13847/j.cnki .lnmu(sse).2020.05.003.

48 For fathers who are not genetically connected, there is a lack of relevant cases in practice, and it is not possible to compile statistics on the court's attitude towards the paternity of fathers who are not genetically connected.

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mother-child relationship is found to exist, the father is preferred to be granted custody to avoid disputes over the identity of the mother.

This disadvantage was apparent in Chen Ying vs Luo Ronggeng's case: In the first trial, due to the lack of biological connection, the intended mother - who in fact raised the two children since they were born - is not recognized as having a mother-child relationship with the children. Thus the court decided to uphold the grandparents’ claim for custody in the case of the death of the child's biological father and the unknown of the birth mother, despite the fact that although the grandparents are actually genetically connected with the both of the children, they lacked the ability to take good care of them. Even in cases where the court has found the mother to be the birth mother49, and in cases where the civil code gives priority on custody to the mother, the mother is still at a surprisingly disadvantage in competing with the father in surrogacy custody cases, which is indeed problematic - there is no reason that being under the father’s custody can always be the best for a child. The fact is not hard to tell - especially for the toddler under 2 years old, or even an infant, having their mother around is usually the better arrangement. The exceptions of Article1, as mentioned, only exist when the mother has severe incapability to raise the child.

Such a dispute-avoiding and effort-saving approach reveals the situation that the best interests of the child are not fully taken into account. Since theoretically the mother in some surrogacy cases has been recognized as the biological mother, she should have exactly the same parental status as the father and should not be treated any differently from other natural-born children when determining custody. A mother who is determined to be the biological mother of a surrogate child has the same status as the biological mother of a natural-born child. It would be unreasonable to put her at a disadvantage in practice or even to break the existing rules of preferential maternal maintenance on a regular basis.

49 According to the above case analysis, both circumstances exist for the surrogate mothers and intended mothers with genetical connection in different cases had been regarded as the natural mother.

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III. A glance of European practices

Given the imperfection of China's own surrogacy-related legal framework, it makes sense to look for cases from other countries and legal systems that can be used as comparative cross-corroboration of arguments. If we took a glance at European practices, it may further shows the legal position that the intended mother might get into when against the intended father.

European countries have their own different legislation and practice, and their positions on surrogacy vary. According to the findings in the Advisory Opinion, In thirty-one of the states involved, including twelve where surrogacy agreements are outlawed, an intended father who is also the biological father can prove paternity for a child delivered through surrogacy.

Furthermore, in nineteen of the forty-three states, including seven that prohibit surrogacy partnerships, the intended mother can prove maternity of a child delivered through a surrogacy arrangement to whom she is not genetically related.50 The jurisprudence of the ECtHR, on the other hand, has the influence throughout Europe, which is the exact reason of why we will looking into the decisions made by ECtHR.

Table 4

Case No. Surrogacy type

A.M. v. NORWAY 30254/18 gestational surrogacy

PARADISO AND

CAMPANELLI v. ITALY

25358/12 gestational surrogacy

VALDÍS FJÖLNISDÓTTIR

AND OTHERS v.

ICELAND

71552/17 gestational surrogacy

50 ADVISORY OPINION, concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother. GRAND CHAMBER,

https://hudoc.echr.coe.int/fre?i=003-6380464-8364383

Figure

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References

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