Insights

Who are the legal parents of children born to artificial insemination and IVF in Ningbo?

Ningbo Author：LuXu WANG

In Ningbo, an increasing number of couples who are temporarily unable to conceive naturally are turning to artificial insemination or in vitro fertilization (IVF) to fulfill their dream of becoming parents. The most frequently asked question in the clinic is: After the child is born, who is the legal parent? Is it the donor who provides the sperm, or the husband who signs off on the surgery and takes the baby home to raise? The answer can be summarized in one sentence-during the existence of the marriage relationship, the children born by artificial insemination agreed by the husband and wife are regarded as children born in wedlock, and there is no legal difference between children born naturally; it is not genes that determine the identity of parents, but "whether the husband and wife agree or not". Blood relation is not the sole criterion for establishing a parent–child relationship; in this context, the law places greater emphasis on the stability of family ties and the best interests of the child. This rule is established by Article 40 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code.

1. The legal status of children born through artificial insemination and in vitro fertilization.

artificial insemination refers to the method of injecting semen into a woman's body by artificial means to make her pregnant by alternative means of sexual intercourse. According to the source of semen, it is divided into husband's artificial insemination and donor artificial insemination (using sperm donated by a third party). In vitro fertilization–embryo transfer, commonly known as “in vitro fertilization” or “IVF,” involves fertilizing an egg with sperm outside the body and then transferring the resulting embryo back into the mother’s uterus. These technologies are collectively referred to as human assisted reproductive technologies and must be performed in approved medical institutions for medical purposes.

Regardless of the approach taken, the law does not confer a “separate status” on these children. (I) Article 40 of the "Interpretation (I) of the Chapter on Marriage and Family" stipulates: "During the subsistence of the marital relationship, if both spouses agree to artificial insemination, any child born shall be regarded as a legitimate child, and the rights and obligations between parents and children shall be governed by the relevant provisions of the Civil Code." "There are two key words here: one is" during the existence of the marriage relationship "and the other is" both husband and wife agree ". As long as both conditions are met, the child is considered a legitimate child and enjoys the same legal status as a child conceived through natural means.

This rule did not come out of thin air. As early as 1991, the Supreme People's court responded with the reply on the legal status of children born by artificial insemination during the existence of the relationship between husband and wife; Article 40 of the interpretation (I) of marriage and family compilation, which came into force in 2021, is to fix the content of the reply letter after it is standardized and expressed, only to update the legal basis from the original marriage law to the civil code. Among these, the term “deemed” constitutes a legal fiction: even if the child has no biological kinship with the husband (or wife)—for example, when third-party donated sperm or eggs are used—the law directly recognizes them as parent and child, without further inquiry into genetic relationships.

2. "Consent" is the core requirement.

If the law only allows one sentence to be remembered, it is "consent". It is both the prerequisite for recognizing a child as legitimate and the focal point of contention in such cases. In practice, it is important to clarify three points: who consents, in what form the consent is given, and whether the consent can be revoked afterward.

Who agrees. “Mutual consent” refers to the joint and genuine expression of intent by both spouses. As long as both parties consent to conceiving through artificial insemination, any child born shall be considered a legitimate child, regardless of whether the sperm used is that of the husband or from a third-party donor. Conversely, if only one party consents while the other consistently objects, this essential element is lacking, and Article

40cannot be directly applied.

In what form of consent. The most reliable and commonly used form of evidence is the informed consent form or artificial insemination agreement signed by both spouses prior to the procedure—medical institutions typically require both spouses to sign such documents before proceeding with assisted reproductive technologies, and this itself serves as written proof of “mutual consent.” However, consent is not limited to signatures: the communication records between husband and wife around childbirth, the records of joint medical treatment and payment, and the fact that the husband accompanied and paid the expenses may prove that both parties have the intention of giving birth together.

Can I change my mind afterward? The answer is no. The main points of the judgment of the Supreme People's Court's guiding case No. 50 "Li Mou, Guo Mou Yang v Guo Mou and Tong Mou Inheritance Dispute" are clear: during the existence of the relationship between husband and wife, both parties agree to use other people's sperm for artificial insemination and make the woman pregnant. After that, the man repents, and the woman insists on giving birth to the child, regardless of whether the child was born during the existence of the relationship between husband and wife. The reason is that the man has already made the intention of giving birth together by signing the relevant documents of the operation. After that, he unilaterally changed his mind and could not overthrow the established legitimate status. Once conception has taken place, whether a child is born often depends on the mother’s wishes; the law cannot allow one party to negate an already established parent–child relationship by simply stating, “I don’t want this now.”

The opposite of "repentance" is "disagree from the beginning". If one party has never consented while the other party acts unilaterally, the conditions for applying Article 40 are not met, and any child born as a result shall, in principle, be treated as a non-marital child; moreover, pursuant to Article 1,071 of the Civil Code, non-marital children shall enjoy the same rights as marital children.

3. Three typical scenarios

When applying the rules to specific scenarios, there are generally three situations regarding the determination of the legal parents of children born through artificial insemination or in vitro fertilization.

Scenario 1: Both parties consent during the marriage. During the existence of the marriage relationship, the husband and wife jointly decide to give birth with the aid of assisted reproductive technology, and sign the informed consent form together. The children born are children born in wedlock, and the legal parents are the husband and wife. Even if sperm or eggs donated by a third party are used, there is no legal parent-child relationship between the child and the donor.

Scenario 2: One spouse acts unilaterally during the marriage. If one party unilaterally performs artificial insemination or IVF without the consent of the other party, and the other party opposes from the beginning, Article 40 does not apply. At this time, blood relationship must be distinguished and determined: the party providing germ cells is the biological father or mother of the child in the sense of blood relationship; the party who does not agree and has no blood relationship does not naturally become a legal parent because of marriage relationship in principle. If the party who initially did not consent subsequently ratifies the arrangement through actual caregiving, cohabitation, or other means, the court may also recognize the existence of a de facto caregiving relationship.

Scenario 3: Use of third-party sperm or egg donation. Donor sperm may be used when the husband is azoospermia or suffers from genetic diseases unsuitable for fertility, and donor eggs may be used when the wife's ovarian function fails. As long as both spouses consent, any child born, regardless of the source of the sperm or egg, shall be deemed a legitimate child of both spouses. Here to distinguish between "sperm" "egg" and "surrogacy": the first two are just germ cell donation, pregnancy, childbirth is still the wife himself.

4. Confirmation and denial of parent-child relationships

In the vast majority of cases, children conceived through artificial insemination are registered at birth or shortly thereafter as the children of both spouses, and disputes rarely arise. In practice, cases that actually reach the courts typically involve two extreme scenarios: one is seeking to overturn an established marital parent–child relationship (denying paternity/maternity), and the other is seeking to establish a parent–child relationship with a particular child (confirming paternity/maternity).

Let’s start with the rule of presumption. During the subsistence of a marriage, any child conceived or born is legally presumed to be the child of the mother and her husband. This "presumption of legitimate children" does not rely on blood, but is based on marital relations, so it may be overturned by objective facts. The reason why children conceived through artificial insemination are “treated as legitimate children” is precisely an extension and reinforcement of this presumption.

Let's talk about paternity testing. Article 39 of the (I) on the Interpretation of Marriage and Family stipulates: "If the father or mother files a lawsuit with the people's court to deny the parent-child relationship and has provided necessary evidence to prove it, and the other party refuses to do the paternity test without contrary evidence, the people's court may find that the claim of the party denying the parent-child relationship is established. If the father or mother and the adult child sue for confirmation of the paternity and provide necessary evidence to prove it, and the other party refuses to make a paternity test without evidence to the contrary, the people's court may determine that the claim of the party confirming the paternity relationship is established. This rule can be summarized as follows: the party asserting a claim must first present the necessary evidence; if the opposing party neither produces evidence nor cooperates with the expert appraisal, it shall bear the adverse consequences.

It needs to be specially reminded that on the occasion of prior consent of both husband and wife, one party requests to deny the parent-child relationship on the grounds of "the child does not have my blood relationship" afterwards, and it is usually difficult to obtain support: the original consent itself is the meaning of establishing "common children", and the law does not allow the parties to create a parent-child relationship first and then overthrow it by blood relationship. Conversely, only if one party can provide evidence to prove that they never consented and that the surgery was performed without their knowledge may the presumption of legitimate birth be rebutted.

With regard to the time limit for denying a parent–child relationship, there are differing interpretations in practice. Article 39 of the current judicial interpretation only stipulates rules of evidence and does not establish a uniform period of limitation. Some judicial views hold that the right of denial must be exercised in a timely manner and may be subject to a one-year limitation period, calculated from the date when the party knew or ought to have known of the grounds for denial; however, this “one year” is not an absolute statutory deadline and must still be determined in light of the specific facts of the case.

5. Differences from surrogacy

the reason why artificial insemination and test-tube baby can make children obtain the status of wedlock is that they belong to legal assisted reproductive technology; surrogacy is another matter.

According to the Management Measures of Human Assisted Reproductive Technology issued by the former Ministry of Health, human assisted reproductive technology should be carried out in medical institutions for the purpose of medical treatment and in accordance with relevant national laws and ethical principles; medical institutions and medical personnel are not allowed to implement any form of surrogacy technology. In other words, surrogacy is expressly prohibited in China.

This distinction directly determines who the child’s legal parents are. In legally permissible assisted reproductive procedures, the wife herself carries and delivers the child. In accordance with the legal principle that “the birth mother is the legal mother,” and with the consent of both spouses, the child is naturally recognized as belonging to that couple. Surrogacy is different: the surrogate mother is pregnant and delivered, and the legal birth mother of the child is the surrogate; the consanguineous party is the legal father of the child, but there is no marriage relationship between the two parties, and the child is born out of wedlock. The party who does not provide germ cells and does not give birth in the entrusted couple will not automatically become a legal parent just because he "gives money" and "wants children", and at most, he may form a stepparent-child relationship with a dependent relationship with the child. Therefore, the rules of artificial insemination and IVF must not be applied to surrogacy. The legal consequences of the two are very different.

6. custody and maintenance in the event of divorce

Since children born through artificial insemination or in vitro fertilization are considered legitimate children, all matters concerning the child in the event of a divorce between the parents shall be governed by the rules applicable to legitimate children, without any special treatment.

The core of the judgment of custody is the principle of "most beneficial to minor children. In principle, children under the age of two shall be directly raised by their mothers; if they have reached the age of two, if both parents fail to reach an agreement and both parents request direct support, the court shall make a judgment according to the specific circumstances and in accordance with the principle of being most beneficial to the minor children; those who have reached the age of eight shall respect their true wishes. The existence of blood relationship is not a factor in determining custody-for children of artificial insemination by mutual consent, even if one party has no genetic connection with them, they are still legal parents and have the same right and obligation to raise them.

With regard to child support, the parent who does not have direct custody of the child shall bear all or part of the child support expenses. The amount may be determined based on the child’s actual needs, the financial capacity of both parents, and the local standard of living. The relationship between parents and children is not eliminated by divorce: after divorce, the children, whether directly raised by the father or the mother, remain the children of both parents, and the party who is not directly raised has the right to visit and is also obliged to continue to pay maintenance. Attempts to refuse child support on the grounds that “the child is not biologically mine” are generally not upheld by the courts where assisted reproductive technology was used with the mutual consent of both parties.

7. Inheritance and Identity Interests

Children born through artificial insemination or in vitro fertilization are legally recognized as legitimate children, and their rights to inheritance, the right to be supported, and the obligation to provide support are exactly the same as those of children born of natural blood relations.

Guiding Case No. 50 of the Supreme People’s Court is a typical inheritance dispute involving a child conceived through artificial insemination. In this case, both spouses agreed to use another person’s sperm for artificial insemination. Subsequently, the husband reneged on his agreement and, in his will, disclaimed any parental relationship with the child and excluded the child from inheriting his estate. The court holds that, under the law, the child is the legitimate child of the male party; the male party’s unilateral denial is invalid, and the child is entitled to inheritance rights in accordance with the law. The rules are clear: once a marriage is established, neither party can exclude children born from artificial insemination from inheritance by will or unilateral declaration.

In addition to inheritance, the child's other identity interests are also protected. Regarding surnames, children may take either the father’s or the mother’s surname; as for household registration, as long as the birth certificate and other supporting documents establishing the parent–child relationship are complete, the child can undergo standard birth registration and household registration procedures. If both spouses consent to assisted reproductive technology, they can usually complete the registration smoothly by presenting the relevant certification issued by the medical institution. The parents listed on the birth certificate often represent a child’s initial identity, and in cases of registration disputes, this can be corroborated by documents such as the informed consent form and medical records from that time.

8. common mistakes

In the consultation, some misunderstandings appear repeatedly, which deserve to be clarified one by one.

  • Myth 1: “If there’s no blood relation, they’re not my child.”"In cases of artificial insemination and in vitro fertilization conducted with the mutual consent of both parties, biological kinship is not the determining factor for establishing a parent–child relationship. The law, by treating the child as a legitimate child, establishes the parents’ status; it is not permissible to deny the parent–child relationship or refuse to provide support solely on the ground that there is no genetic connection.
  • Misunderstanding 2: "If you don't sign, you can also identify it." On the contrary, "mutual consent" is the core requirement for the application of Article 40. If one party does not agree from the beginning and the other party carries out the operation without authorization, it cannot of course be regarded as the legitimate child born to both parties.
  • Misunderstanding 3: "If you sign, you will go back on your word afterwards." Consent, once made and conceived, cannot be revoked unilaterally. Guidance case No. 50 has made it clear that the man's reneging after conception will not affect the child's legitimate status.
  • Myth 4: "If you use other people's sperm, the child is related to the donor." No. The donor only provides germ cells. In law, he is neither the parent of the child, nor does he have rights and obligations such as raising, inheriting, and supporting the child.
  • Myth 5: "Surrogacy and test tube are the same thing, and the rules can be universal." The nature of the two is completely different. Surrogacy is explicitly prohibited, and the identification of their children cannot copy this rule.

9. Frequently Asked Questions

Question 1: The husband and wife went to the hospital to do artificial insemination with donor sperm because of the lack of sperm. After the child was born, the husband went back and said it was not his. Who is the father of the child? The father is still the husband. The husband and wife agree to artificial insemination during the existence of the marriage relationship, and the children born are regarded as children born in wedlock, and the husband is the legal father of the child, and reneging does not affect this status.

Question 2: The wife made the test tube baby without telling her husband, can the husband claim that the child has nothing to do with him? can be claimed by law. Due to the lack of the requirement of "unanimous consent of both parties", Article 40 is not applicable. In principle, children shall be determined as illegitimate children. However, if the husband actually raises and ratify it afterwards, the court may also deal with it differently, depending on the evidence.

Question 3: The child is born by sperm donor, can he inherit the property of the sperm donor in the future? No. There is no legal parent-child relationship between the donor and the child, and the child has inheritance rights only to his legal parents (I. e. the consenting husband and wife) and is also obliged to support the parents.

Question 4: What will the court do if the husband refuses to do a paternity test and the wife insists that the child is his? According to Article 39 of the (I) of Interpretation of Marriage and Family Compilation, the party who claims to confirm (or deny) the parent-child relationship must first provide necessary evidence; if the other party refuses to cooperate with the identification without evidence to the contrary, the court can determine that the claiming party is established.

Question 5: At the time of divorce, the child is not related to him by blood, can he not pay alimony? Generally not. The children of artificial insemination agreed by both parties are children born in wedlock, the relationship between parents and children shall not be eliminated by divorce, and the party who has not been directly raised shall still bear the maintenance fee.

Question 6: If the husband and wife agree to make a test tube, are the children treated the same as the children born naturally in terms of inheritance? Exactly the same. The status of children born in wedlock is reflected in inheritance, upbringing, maintenance and other aspects, and the law will not treat them differently because of the way of conception.

10. Practical Legal Insights

The winners and losers of this kind of disputes almost all fall on the point of "whether the two sides agree or not", and the agreement depends on the evidence. The most direct is the informed consent form and artificial insemination agreement jointly signed by both husband and wife before the operation, and it is best for each of them to keep one copy. The second is the communication record around the pregnancy preparation process, the payment certificate for joint medical treatment, and the accompanying trace of prenatal examination. These things don't usually feel important. Once the other party says "I didn't agree at the beginning" during the divorce, it is your first line of defense to keep the status of children born in wedlock, and you must consciously keep it from the beginning.

If the other party turns against him and denies the parent-child relationship, don't panic to do any identification and evidence-legally, it is "unanimous consent" rather than genes that determine the identity of the parents. Your task is to organize the evidence of consent at hand into a chain to prove that it was the two people who decided together at the beginning. On the other hand, if you are the party who disagrees and want to deny it now, you should also know that this road is not easy: "the child is not mine" is not enough to overturn it. It depends on whether you have left a record of opposition or ignorance at the beginning. The sooner you act, the better.

When it falls into the divorce itself, custody and maintenance should be considered together. Since the child is considered to be a legitimate child, the upbringing arrangement is handled according to the usual rules: the party claiming the right of upbringing shall fix evidence of long-term care, stable residence and income. When negotiating, don't take the "child's life experience" as a bargaining chip to attack each other, which will not only hurt the child but also may not change the legal conclusion. Focusing on the specific terms and expenses of the upbringing arrangement is what can really fall on paper.

To sum up, who are the legal parents of children born by artificial insemination and test-tube baby depends on three points: whether it is during the marriage, whether it is agreed by both husband and wife, and whether it belongs to legal assisted reproductive technology. As long as the three are complete, the child is the legitimate child of the couple, and there is no legal difference from the natural child. On the other hand, if one party does it without consent, or involves prohibited surrogacy, the identification will take another track.

There are several suggestions for families who are preparing or giving birth through assisted reproductive technology: firstly, it must be carried out in a regular medical institution approved to carry out assisted reproductive technology, and both husband and wife should sign the informed consent document before the operation and keep it properly; secondly, try to keep written or available records on matters such as communication, medical treatment, payment and so on, in case of future proof of "mutual agreement", there is evidence to follow; third, a correct view of blood relationship-the stability of family relations and the healthy growth of children are the most important values of the law; fourth, in the event of parent-child relationship, upbringing, Inheritance disputes, consult professionals as soon as possible and save evidence.