The original intention of giving birth should not be sold out of profit

　　Recently, the topic of surrogacy has aroused widespread public concern and heated discussion.

Surrogacy is banned in most countries in the world.

Although our country's laws clearly prohibit surrogacy, this gray industry still exists.

In the past three years, the Shanghai Putuo Court has tried and judged two more typical cases involving surrogacy, and pointed out that the original intention of giving birth should be the nurturing of "love", not the sale of "profit".

　　Case 1: The couple failed to go to the US for surrogacy. Should the surrogacy company refund the fee?

　　On March 4, 2017, Wang signed a service contract with M company (a domestic designated cooperative unit of a medical center in the United States), and agreed that M company would provide Wang with pre-consultation services for medical projects related to surrogacy in the United States.

On the same day, Wang also signed a contract with a medical center in the United States providing surrogacy services to Wang.

After that, Wang paid part of the service fee to M company one after another.

　　In April 2017, Wang and his wife went to the United States for egg retrieval and embryo breeding, but they did not succeed in surrogacy.

The two parties have a dispute over whether the service fee should be refunded.

Wang filed a lawsuit, believing that the service contract signed by both parties is invalid, and demanded that M company refund all service fees and bear the losses.

　　The Putuo Court held that the surrogacy involved in the contract between the two parties violated the basic public order and good customs and social public interests, and was prohibited by current laws in my country. Therefore, the service contract signed by Wang and M company should be deemed invalid.

While Wang knew that the surrogacy was illegal, he still signed a contract with Company M. In the event that the contract is invalid and both parties are at fault, the respective losses shall be borne by each.

　　Accordingly, the court ruled that the service contract signed by the plaintiff and M company was invalid, and M company refunded the service fee Wang had paid and rejected Wang's other claims.

　　Case 2: Who is the mother after she borrows her egg to get a child?

　　In September 2015 and January 2016, Shen and Wang as the principal (Party A) and the agent Yu (Party B) respectively signed the "Test Tube Baby Package Successful Surrogacy Agreement", which agreed that Party A (Wang) To provide sperm, Party B arranges for a surrogate mother to supply a baby to Party A through IVF technology.

The agreement is valid for 30 months.

　　In December 2016, Xiao Wang was born in a hospital in Shanghai.

The "Medical Birth Certificate" issued by the hospital showed that the mother was Shen and the father was Wang.

Judicial appraisal confirmed that Wang was Xiao Wang's biological father.

Wang's son-in-law sued, demanding confirmation that Xiao Wang has no parent-child relationship with the "nominal mother" on the birth certificate.

　　It was confirmed by the court that the plaintiff Xiaowang was born by his father Wang who provided sperm and eggs by others, and was born through IVF surrogacy. Obviously, he has no biological blood relationship with defendant Shen.

　　The court stated that from the perspective of the surrogacy agreement, Shen and Wang only acted as the entrusting party and accepted the surrogate arrangement for the surrogate mother. The key fact that Shen was the surrogate mother was not stated.

From the hospital's pregnancy and childbirth records, although the mother's name was registered as Shen, the basic information such as blood type, height, and birth history did not match Shen.

Therefore, although Shen's medical birth certificate, WeChat chat records, family photos and other evidences can prove the objective facts of taking care of Xiao Wang, there is no direct evidence that Shen is the surrogate mother who gave birth to Xiao Wang.

　　The court held that Wang and Shen were only boy and girl friends and had not changed into a legal marriage.

Moreover, the "Test Tube Baby Package Successful Surrogacy Agreement" signed by both parties was invalid due to violation of public order and good customs.

Based on comprehensive considerations, the Putuo District Court of the first instance ruled that Xiao Wang and the defendant Shen did not have a parent-child relationship.

After Shen appealed, the Shanghai Second Intermediate People's Court upheld the original judgment.

　　Qian Peijian

Qian Peijian