Insights

Is Ningbo Surrogacy Agreement Effective? Who are the children born by surrogacy?

Ningbo Author：LuXu WANG

Regarding surrogacy, many people are most concerned about two issues: Does the surrogacy agreement have legal effect? Who are the children born by surrogate in law? Let's make the conclusion clear: in our country, the surrogacy agreement is invalid-it is not recognized and protected by law because it violates public order and good customs, and the provisions in the agreement, such as "the child belongs to the client", "no repentance" and "compensation for breach of contract", have no legal effect. But also remember the other half: the child born by surrogacy is innocent, and the legal protection of him (her) will not be compromised because of the way of birth, whether it is a child born in wedlock, a child born out of wedlock, or a child born by artificial means, The law gives equal protection to one body. This article addresses only legal validity and the rights of children, and does not cover any operational aspects.

Why the 1. surrogacy agreement is invalid

To judge whether an agreement is valid, we must first look at the law. Our attitude towards surrogacy is very clear. In 2001, Article 3 of the “Administrative Measures for Assisted Reproductive Technologies” issued by the former Ministry of Health stipulated: “The application of assisted reproductive technologies shall be conducted in medical institutions, for medical purposes, and in compliance with the state’s family planning policies, ethical principles, and relevant laws and regulations.” It is prohibited to buy or sell gametes, zygotes and embryos in any form. Medical institutions and medical personnel shall not perform any form of surrogacy technology. "Article 22 of the Measures also stipulates that if a medical institution implements surrogacy technology, the health administrative department shall give a warning, a fine of less than 30,000 yuan, and impose administrative sanctions on the responsible person. If a crime is constituted, criminal responsibility shall be investigated according to law.

There is a key point here that is easily overlooked. The "Administrative Measures for Human Assisted Reproductive Technology" is a departmental regulation, and it is not the "laws and administrative regulations" mentioned in Article 153 of the Civil Code ". Therefore, the invalidity of the surrogacy agreement is not strictly because it violates the "mandatory provisions of laws and administrative regulations", but because it violates public order and good customs. The second paragraph of Article 153 of the "Civil Code" clearly stipulates: "Civil legal acts that violate public order and good customs are invalid."

Why do surrogacy agreements violate public order and good customs? The reason is that such agreements regard women's wombs as "tools" that can be rented out, and fetuses as "objects" that can be traded, and some even agree to test the sex of embryos and have to give birth to boys, which is essentially trading personality rights as commodities. This is not in line with the provisions of Article 107 of the Civil Code on the prohibition of the sale of human cells, human tissues, human organs, and remains, and it is also in line with Article 109. Medical and scientific research activities shall abide by laws, administrative regulations and relevant state regulations, and shall not endanger human health, violate ethics and morals, and shall not harm public interests. In judicial practice, the court found that the surrogacy agreement is invalid. For example, in a surrogate parenting contract dispute in Guangzhou, both the court of first instance and the court of second instance held that the surrogate parenting agreement in question violated public order and good morals and impaired the public interest, and thus should be deemed invalid under the law. It is evident that the fundamental basis for the invalidity of surrogacy agreements lies in public order and good morals, rather than in their violation of any specific law or administrative regulation.

Consequences of Invalidation of 2. Agreement

The invalidity of the agreement does not mean that "no one is responsible", but the property and losses that have already occurred should be dealt with according to legal rules. Article 157 of the Civil Code provides: “After a civil legal act is declared invalid, rescinded, or determined to have no legal effect, any property obtained by the parties as a result of such act shall be returned; if return is impossible or unnecessary, monetary compensation shall be made in lieu thereof.” The party at fault shall compensate the other party for the losses suffered as a result; if all parties are at fault, they shall each bear the corresponding responsibility."

in surrogacy disputes, this sentence should be split into two layers. The first layer, the principal has paid the various payments can be returned. Because surrogacy itself is illegal, both parties are usually "well aware" of the invalidity of the agreement, which means that both parties are at fault. The second level, how to share the loss. In practice, courts typically first assess the extent of each party’s fault and then determine the proportions for restitution and compensation. In the above-mentioned Guangzhou case, the first-instance judgment found that the fault ratio between the intermediary agency and the entrusting party was 7: 3, and the agency assumed the main responsibility; the second instance was changed to "equal fault and equal responsibility", that is, the entrusting party and the intermediary agency each bear half, and the so-called service fee paid and the related expenses in the surrogacy process are determined according to this ratio.

What I want to remind here is a big truth: money may not be able to get all back. On the one hand, the "service fee", "intermediary fee" and "nutrition fee" in the surrogacy chain are often actually consumed or used for expenses that are difficult to return. Even if the court decides to return, the execution may fail. On the other hand, "return" should be linked to "fault". The entrusting party, knowing that the violation of the law is still involved, will bear the corresponding consequences. It is difficult to expect to get back a lot of money by relying on the "invalid agreement" in reality.

3. How is the parent-child relationship of children born through surrogacy determined?

The agreement is invalid, whose child is the child? This is the most difficult problem in the surrogacy dispute. To make it clear, we need to look at the "mother-child relationship" and the "father-child relationship" separately.

(I) The biological mother is determined based on the principle that "the one who gives birth is the mother."

in natural birth, the fact that a child is born is sufficient to presume the mother-child relationship, that is, "whoever gives birth is the mother of the child", without asking who the egg comes from. This principle is generally adopted in German, Anglo-American and other jurisdictions, and the German Civil Code stipulates that "the mother of the child is the woman who gave birth to the child". The situation with surrogacy is different: the egg may come from a third party, and the uterus belongs to the surrogate mother. In response, the court has adopted the "childbirth theory" in a number of cases, I .e.The fact of gestation and childbirth shall serve as the basis for establishing the mother–child relationship.. The reason is that the mother establishes a physical and psychological connection with the fetus during pregnancy and assumes the risk of childbirth. Therefore, in law, the surrogate is usually recognized as the biological mother of the child.

(II) the legal relationship between the client and the child

Whether the entrusting party can become a legal parent should be treated according to different situations:

  • If the father of the client provides sperm, the child is related to him by blood, and in the case of his claim, he is usually identified as the biological father; since there is no legal marriage relationship between him and the surrogate, the children born are legally illegitimate children.
  • If among the commissioning parties... The mother did not provide eggs and did not give birth, then she has no blood relationship with the child, nor can she be directly identified as the biological mother only by a paper entrustment agreement or the will of "wanting a child.
  • However, under certain conditions, she may still establish a legally protected relationship with the child. In the above-mentioned case of the first surrogacy custody dispute in the country, the court held that the "nurturing mother" who had a legal marriage relationship with the child's biological father and actually raised the child out of wedlock could form a "step-parent-child relationship with the child" based on the factual act of raising and the subjective will to "treat the parents and children". It should be noted that this determination is premised-it does not mean that the principal is of course the child's parents, but only a legal fiction relationship formed on the basis of specific facts.

(III) Paternity Test and Confirmation

The parent-child relationship is not "agreed" by agreement, but confirmed by legal procedures. Article 1,073 of the Civil Code provides: “Where there is an objection to the parent–child relationship and there are justifiable reasons, either the father or the mother may bring a lawsuit before the people’s court to request confirmation or denial of the parent–child relationship.” An adult child who has legitimate grounds to dispute the parent–child relationship may bring a lawsuit before the people’s court to seek a judicial determination of such relationship. "That is to say, the party who advocates the parent-child relationship needs to prove it through paternity test and other evidence, and follow the rule of" who advocates, who gives evidence. If one party has provided the necessary evidence and the other party refuses to do a paternity test without evidence to the contrary, the court may find the claim valid. On the other hand, even if there is a "entrustment agreement" stating who the parents are, the court will not directly determine the parent-child relationship accordingly.

Ownership of 4. Custody: Judging by the maximization of children's interests

After the parent-child relationship is determined, who will raise the child is another level of issues, and its judgment standard is to maximize the interests of children. Article 3 (1) of the United Nations Convention on the Rights of the Child states: "In all actions concerning children, whether carried out by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. "our country ratified and acceded to the convention in 1992.

The most typical example is the first case of custody dispute of surrogacy children tried by Shanghai No. 1 Intermediate People's Court. The case is roughly as follows: a couple bought other people's eggs after marriage, the husband provided sperm, through in vitro fertilization by other women's surrogacy, gave birth to a pair of twins; after the birth of the child has been living with the husband and wife. When her husband died a few years later, the grandparents sued for custody of the two children. The first instance supported the grandparents' request, and the second instance was revised to reject it.

The judgment thinking of the second instance is worth carefully understanding: the first step is to identify the child as an illegitimate child born by the husband and others through surrogacy during the existence of the relationship between husband and wife, the biological mother is identified as the surrogate according to the delivery theory, and the biological father is the husband who provides sperm and is related to him by blood; the second step is to identify the "nurturing mother" who has legal marriage relationship with the child ", the stepparent-child relationship that has formed a dependent relationship with the child ranks before the grandparents in the order of guardianship; the third step, when determining the ownership of guardianship, the age and guardianship ability of both parties, the child's living environment and emotional needs, The integrity of the family structure and other factors, it is believed that it is more in line with the principle of maximizing the interests of the child to assign custody to the nurturing mother. This case was later included in the reference case of the Supreme People's Court and was also included in the work report of the Supreme People's Court.

Here is a point that must be clarified: The maximization of children's interests is the criterion for determining the ownership of custody and guardianship, not the criterion for determining parent-child relationship. In other words, one cannot directly identify one party as the child's parent just because "it is more beneficial for the child to live with one party"; the identity relationship must be identified according to law before the upbringing arrangement is discussed. This sequence precisely reflects the balance between "respecting identity ethics" and "protecting children's interests.

5. the client goes back on his word, the surrogate goes back on his word, how to deal with the dispute generally

In reality, any party in the surrogacy chain who goes back on his word may cause disputes. Understanding the previous rules, the direction can be generally predicted.

  • The entrusting party repents and does not want the child: the birth mother of the child is the surrogate who gave birth, and the birth father (if the sperm is provided and claimed) is the father of the entrusting party. The obligation to support is a legal obligation based on the parent-child relationship, Does not disappear because "signed the agreement in the first place" or "don't want it now". The entrusting party cannot use the "agreement is invalid" as a reason to refuse to assume responsibility for the upbringing of the child.
  • The surrogate repents and is unwilling to hand over the child: since the person giving birth is the mother, the surrogate is the birth mother in law. Even if the entrusting party holds the agreement, it is difficult to "get back" the child accordingly. The sperm‑donating father, as the commissioning party, may seek to intervene by establishing paternity and asserting custody rights; however, the ultimate determination of which parent shall have custody must still be based on the best interests of the child, rather than on the terms of any agreement.
  • Neither party is willing to take custody: this would violate the fundamental principles of protecting minors. If you have the obligation to raise and refuse to perform it, if the circumstances are serious, you may bear legal responsibility. Civil affairs, public security, and judicial organs will also intervene in accordance with the law to protect the basic rights and interests of children.
  • The clauses of "giving up support", "not claiming" and "liquidated damages" in the agreement: Because the whole agreement is invalid, these terms are also not binding, and no one can expect to use it to "lock" the child or "restrain" the other party.

Legal alternative paths for families with 6. childbearing difficulties

To understand why surrogacy is invalid is ultimately to remind families with real fertility difficulties: pinning their hopes on illegal ways is not only a huge risk, but also likely to "lose both money and people". To solve the problem of fertility within the legal framework, there are two main legal paths.

Adoption by (I)

Adoption is a legally recognized means of establishing a parent–child relationship. Minors who meet the relevant conditions may be adopted. After prospective adoptive parents, who also meet the relevant conditions, have completed adoption registration with the civil affairs department, a legally protected parent–child relationship is established between them and the adopted child, and their rights and obligations shall be governed by the provisions of law pertaining to parents and children. Adoption has specific requirements and procedures; applicants must submit an application to the civil affairs department, which will review and register the case. The exact requirements are subject to those set by the local civil affairs authority. Compared with surrogacy, adoption is a path with clear rules and definite identity relationship.

(II) legal assisted reproductive technology

Here, it is necessary to distinguish between “legal assisted reproductive technologies” and “surrogacy.” In China, assisted reproductive technology isSpecial Clinical Diagnostic and Therapeutic Techniques with Restricted Applications, must be conducted in a qualified medical institution, for medical purposes, and in compliance with relevant national regulations and ethical principles. Legal assisted reproduction has its clear boundaries: for example, according to the relevant judicial interpretation, if both husband and wife agree to carry out artificial insemination during the marriage relationship, the children born shall be regarded as children born in wedlock, and the rights and obligations between parents and children shall be governed by the provisions of the Civil Code; in legal medical assisted reproduction, the third person who donates sperm or eggs shall not establish a parent-child relationship with the children born.These are clearly stated: Fertility issues should be addressed through legitimate medical care, not by buying and selling uteri or fetuses. For families with childbearing difficulties, formal medical diagnosis and treatment and adoption in accordance with the law are the safe choices.

7. Risk Alert

Based on the previous analysis, the possible risks of participating in surrogacy can be summarized as follows:

  • The risk of contract invalidity: The surrogacy agreement is invalid because of violating the public order and good customs, and is not protected by law. The invested money may not be recovered, and the so-called "breach clause" cannot be implemented.
  • Risk of uncertain identity: The client (especially the mother who has not provided eggs and has not given birth) may not be recognized as the father or mother in law, and the child's household registration, enrollment, inheritance and other matters may encounter obstacles.
  • upbringing and property risks: once the parent-child relationship is identified according to legal rules, the accompanying upbringing obligations, property disputes and inheritance disputes often exceed the parties' original expectations.
  • Associated Legal Risks: Illegal surrogacy often gives rise to unlawful, and even criminal, activities such as the forgery or trafficking of birth certificates; entities and individuals engaged in such activities may also face administrative penalties or even criminal liability.
  • Ethics and Family Risks: Surrogacy may also cause physical and psychological harm to women and leave unresolved conflicts within families.

Bringing these risks to light is not meant to create alarm, but rather to illustrate one point:Surrogacy may seem like a “shortcut,” but in reality, it is a path fraught with legal and ethical pitfalls.. Families with fertility needs should seek solutions through legal channels rather than risking illegal activities.

8. Frequently Asked Questions

Question 1: In a surrogacy agreement, if it is stipulated that “the child shall belong to the commissioning party and all expenses shall be borne by the commissioning party,” is such a clause valid?

Invalid. The surrogacy agreement as a whole is invalid due to its violation of public order and good morals; accordingly, the provisions concerning the allocation of parental rights and the burden of expenses also lose their legal effect and may not be relied upon as a basis for determining the parent–child relationship or allocating responsibilities.

Question 2: If the commissioning party has paid, but the surrogate fails to hand over the child, can the commissioning party file a lawsuit to “reclaim” the child?

You cannot simply “get it back” based on an agreement alone. Because the person who gives birth is the mother, the surrogate is legally considered the child’s biological mother. The sperm-providing father, as the commissioning party, may assert his rights by establishing paternity and claiming custody; however, with whom the child ultimately resides shall be determined by the court in accordance with the principle of maximizing the child’s best interests.

Question 3: After the child is born, can the surrogate mother claim child support from the commissioning parents?

We need to return to the parent-child relationship to make a judgment. The party with the obligation to provide support (e.g., the commissioning father who has been legally recognized as the biological father) shall bear the costs of raising the minor child; the party who does not have direct custody of the child shall also be required by law to contribute to such expenses. The obligation to provide support arises from the statutory parent–child relationship and is not discharged by the invalidity of an agreement.

Question 4: Can a father, by way of authorization, confirm that he is the child’s father?

May be asserted in accordance with the law. Article 1,073 of the Civil Code provides that where there is a dispute over the parent–child relationship and there are justifiable grounds, either parent may bring a lawsuit to the people’s court to seek a determination of the parent–child relationship. The party who provides the sperm and has a biological relationship may substantiate their claim through evidence such as a paternity test.

Question 5: Can the commissioning party have the surrogate-born child registered under their own name? Is this feasible?

Household registration shall be processed in accordance with legally recognized kinship and other legal relationships. If the client cannot be identified as the child's parent, there will be practical difficulties in settling down. This is precisely the “risk of uncertain identity” mentioned earlier—it is not merely a matter of semantics, but one that will have a tangible impact on the child’s life.

Question 6: If the surrogacy agreement is deemed invalid, how much of the money already paid can be recovered?

There is no fixed answer. The court will determine the proportions of restitution and compensation by taking into account the degree of fault attributable to each party. The principal, despite being aware of the illegality, still participated and thus bears its own share of fault, necessitating that it bear a portion of the consequences. Moreover, as the relevant expenses have often already been expended, the amount that can actually be recovered may be limited.

9. Lawyer's Practical Insights

Facing the position competition caused by surrogacy, we should first adjust the expectation: since the agreement itself is not protected by law, we should not regard "how to write it in black and white" as the basis of victory or defeat, and the focus should turn to who actually raises the child and how to benefit the child most. In practice, which parent has been providing long-term, stable care for the child prior to the commencement of litigation, and which parent is better able to offer a consistent environment in terms of housing, income, and time spent with the child, often carries more weight than the parties’ original agreement. Therefore, regardless of which party you are, the first step is to systematically document evidence of your daily life with the child—keep records of medical visits, school enrollment, pick-ups and drop-offs, and payment receipts in a deliberate and organized manner.

In the link of parent-child relationship, the parties often mistakenly think that "the one who pays the money is the parent", but the law values the facts of identity and the rules of fiction. The medical certificate of birth, paternity test, settlement materials and the exchange records of both parties about birth will affect the relationship identification and subsequent claims. If the dispute has already occurred, the above documents should be fixed as soon as possible to prevent one party from handling or concealing the documents alone. At the same time, sort out whether you know and have no fault in the whole process, because this directly affects the sharing of responsibility and your position in the claim. Clarifying these facts in advance will prevent you from being put on the defensive in court.

A more practical step is to shift risk mitigation upstream. For families who genuinely face difficulties in conceiving, the more prudent approach in practice is to undergo assisted reproductive procedures permitted by accredited medical institutions and to clarify their regulatory boundaries in advance, rather than relying on a private agreement. If a dispute has already arisen, during negotiations you can identify the party’s primary concern—whether it’s the children, recovering the money, or avoiding public exposure—and tailor the mediation approach accordingly. By consistently prioritizing the children’s best interests, you can more easily facilitate an outcome that all parties can accept.

To sum up the entire text, it can be reduced to two sentences:Surrogacy agreements are invalid in China because they violate public order and good morals; however, children born through surrogacy are innocent, and their legitimate rights and interests are equally protected by law.The invalidity of the agreement gives rise to a series of complications—difficulty in recovering funds, uncertainty over legal status, disputes over child support, inheritance conflicts, and even the emergence of other illegal issues. For families genuinely facing infertility, rather than taking risks in legal gray areas, it is better to turn to legitimate avenues: seeking diagnosis and treatment through authorized medical institutions, or pursuing adoption in accordance with the law. Be responsible for your child, and also be responsible for yourself.