Can the Civil Code cut the chain of commercial surrogacy?

　　Civil code around

　　From the surrogate mother’s "refund" by the customer to the controversy in the short film "Baby", to the rumors of a celebrity looking for overseas surrogacy detonating the Internet, recently, the topic of surrogacy has frequently stirred the public's nerves.

　　Surrogacy, in popular terms, means "borrowing a child through the belly".

How does the Civil Code look at the phenomenon of commercial surrogacy that continues to surface?

Can existing laws cut the chain of commercial surrogacy?

　　The principle of prohibiting the commercial use of human body has been established

　　"The Civil Code does not have provisions directly related to surrogacy. However, the act of surrogacy essentially involves the personal dignity and life dignity of natural persons, as well as the right to life and body, and the Civil Code makes clear provisions on this." Renmin University of China Law School Professor Shi Jiayou, executive director of the Civil and Commercial Legal Science Research Center, told a reporter from Science and Technology Daily.

　　According to Article 109 and Article 990 of the Civil Code, the personal dignity of natural persons is protected by law. According to Article 1002 and Article 1003 of the Civil Code, the rights of life and body of natural persons are protected by law, and no organization or individual may infringe upon the lives of others. Rights and physical rights.

"Surrogacy is essentially an infringement of the dignity and physical rights of others, and is suspected of conflicting with the legal spirit of the Civil Code." Shi Jiayou said.

　　"In addition, the Civil Code has actually established the principle of'prohibition of commercial use of human bodies'. This is a consensus in comparative law. Therefore, France, Germany, Italy, Spain and other countries have legislated to prohibit surrogacy." Shi Jiayou explained.

　　The principle of prohibiting the commercial use of human bodies is embodied in Article 1006 of the Civil Code. People with full civil capacity have the right to donate their human cells, tissues, organs, and remains free of charge in accordance with the law.

No organization or individual may force, deceive or induce donations.

In addition, Article 1007 of the Civil Code prohibits the sale of human cells, human tissues, human organs, and remains in any form.

"Surrogacy is the commercial use of the human uterus, contrary to the principle of prohibiting the commercial use of the human body." Shi Jiayou said.

　　What if someone voluntarily rents out the uterus for commercial surrogacy?

　　"That shouldn't be allowed by law. It's like buying and selling human organs illegal. Whether it is voluntary or others' buying and selling organs, it is equally illegal." Shi Jiayou said that restricting some freedoms is to ensure broader freedom.

If the uterus can be rented arbitrarily, it is inevitable that women will be forced to rent the uterus. This undoubtedly damages their personal and physical rights, and is also against public order and good customs.

　　Multiple factors cause repeated prohibition of commercial surrogacy

　　In fact, my country's "Management Measures for Human Assisted Reproductive Technology" explicitly prohibits surrogacy.

Article 3 of the administrative measures states that "it is prohibited to buy and sell gametes, zygotes, and embryos in any form. Medical institutions and medical personnel shall not implement any form of surrogacy technology."

The "Ethical Principles of Human Assisted Reproductive Technology and Human Sperm Banks" promulgated in 2003 also stipulated that "medical institutions and medical staff shall not implement any form of surrogacy technology."

　　However, why has surrogacy been repeatedly banned?

　　Some scholars said that since my country’s first surrogacy test-tube baby technology was successful in 1996, surrogacy has developed from a technical problem into a "business" and even gave birth to a secret "baby manufacturing line."

　　The loopholes in the law failed to cut off the surrogacy industry chain.

"Our country's existing laws clearly prohibit medical institutions and medical staff from implementing any form of surrogacy technology, but there are no restrictions on third-party institutions." Shi Jiayou said that some intermediaries believed that the aforementioned regulations were not applicable to them, and took advantage of the legal loopholes.

In addition, the law does not provide clear penalties for individuals or organizations that implement surrogacy.

　　Most importantly, there is always demand.

"Persons with childbirth disorders, families who have lost only one, or people who do not want to give birth but want a child may seek surrogacy." Shi Jiayou said.

Some people find surrogacy to choose the sex of the fetus.

my country prohibits any unit or individual from performing fetal gender identification and selecting gender for artificial termination of pregnancy for non-medical needs.

However, the behavior of testing the sex of a fetus in vitro is outside the law, and surrogacy has naturally become a means of choosing the sex of the fetus, especially some wealthy families will find a surrogate.

　　Urgent need to fill loopholes in legislation and enforcement

　　Experts suggest that loopholes in legislation and law enforcement should be filled as soon as possible to cut the chain of commercial surrogacy.

　　In this process, it is necessary to strengthen the research on public sentiment and public opinion and follow the basic principles of the law.

It not only protects human dignity, but also considers specific needs.

"Should surrogacy be completely banned or moderately open? This requires research and weighing. For example, while banning paid surrogacy completely, we can consider setting aside a certain space for free surrogacy, allowing relatives and friends to free surrogacy based on morality or affection. This is also the UK, Belgium, The practice of some countries such as the Netherlands is not inconsistent with the principle of prohibiting commercial use of the body. Of course, if unpaid surrogacy is liberalized, it is necessary to prevent the occurrence of the'slippery effect' called unpaid actually paid." Shi Jiayou said.

In the United States, commercial surrogacy is only allowed in some states.

　　In addition, we must be vigilant against inequality caused by surrogacy.

"Those who are rich are looking for a surrogate, and those who have no money are pregnant. This is actually an exploitative relationship." Shi Jiayou said bluntly.

In 2002, India's commercial surrogacy was legalized, and more than 80% of its clients in the surrogacy industry came from abroad. This was an exploitation of the birth of a country.

In 2015, Indian commercial surrogacy was banned.

　　Surrogacy is about life and involves complicated ethical considerations.

What if a surrogate mother gives birth to a child and wants to raise it by herself?

What should I do if the child does not meet the expected standard and is "returned"?

"According to our country's existing laws, whoever gives birth has the right to custody of the child, which is also the principle of'delivery as mother' adopted by most countries. Therefore, if a surrogate child is abandoned and raised constitutes abandonment, the relevant parties will face legal sanctions." Shi Jiayou said.