In the course of my recent research into Chinese judicial landscape regarding surrogacy, an intriguing case was identified. It is a rare instance in China involving the establishment of parentage for a child born through surrogacy to a same-sex couple. The case took place in Jiangxi, where the plaintiff, Mei (a pseudonym), filed a lawsuit with the People’s Court of Nancheng County, Jiangxi, naming a hospital as the defendant and Li (a pseudonym) as a third party.
Case Overview
Mei and Li are a female same-sex couple who live together. Sharing a deep emotional bond, they decided to pursue surrogacy. An egg was retrieved from Li, fertilized via in vitro fertilization, and the resulting embryo was implanted into Mei, who subsequently carried the pregnancy to term. Later, Mei gave birth to a baby girl at a hospital (the defendant in this case).
Under relevant Chinese laws and regulations, the mother listed on the birth certificate should generally be the person who gives birth. The birth mother may then use the birth certificate to register the child’s household registration at the local police station. However, motivated by a desire for the child to inherit property from Li’s father and to gain his approval, Li sought to have the child registered under her name. Through certain means, the mother’s information on the birth certificate was ultimately recorded as Li. As a result, Mei has now sued the hospitcal with her partner as a third party to the court proceeding, and petitioned to have this birth certificate revoked and reissued with her listed as the mother.
Key Issues: Who is the Mother?
A central legal question in this case is: In a surrogacy arrangement involving a female same-sex couple, who is the child’s legal mother? Chinese law lacks explicit provisions for determining parentage in surrogacy cases. Currently, Chinese courts in judicial practice analyze such cases by drawing upon four main doctrines related to parentage determination: the “Doctrine of Birth”, the “Doctrine of Genetic Relationship”, the “Doctrine of Contract”, and the “Best Interests of the Child Doctrine”.
（1）“Doctrine of Birth” posits that the person who physically gives birth to the child is the mother. Applied to this case, the mother would be Mei
（2）“Doctrine of Genetic Relationship” holds that the person with a biological genetic link should be recognized as the mother. In this instance, that would be Li.
（3）“Doctrine of Contract” suggests that if the parties had an agreement regarding who the parents should be, it should be followed. However, no such agreement existed in this case. Furthermore, even if one existed, it would likely be deemed invalid by the courts for violating “public order and good morals”.
（4）“Best Interests of the Child Doctrine” asserts that parentage should be determined based on the arrangement that most benefits the child’s welfare. Courts would consider factors such as the child’s wishes (if applicable), the parents’ care-giving abilities, and the duration of existing care arrangements, etc.
It is interesting to observe that China's neighboring country Vietnam has somehow recognized surrogacy in prescribed circumstances. You can read more for Vietnamese surrogacy law in the article.
Excessive Judicial Discretion
An examination of relevant Chinese court rulings from the past five years reveals no clear preference for any single one of these four doctrines. Instead, courts make determinations on parentage by considering the specific facts of each case while referencing these doctrines collectively. In the present case, the child was conceived using an egg from one partner in a same-sex relationship, formed into an embryo, and then implanted into and carried by the other partner. Under the “Doctrine of Birth”, the mother would be Mei; under the “Doctrine of Genetic Relationship”, it would be Li. The “Doctrine of Contract” offers no viable application within China’s legal context. Furthermore, the applicability of the “Best Interests of the Child” doctrine is not readily apparent here, as the child is a newborn without conscious will, and both parties’ material circumstances are relatively comparable, making it objectively difficult to determine which arrangement truly maximizes the child’s welfare.
Consequently, whichever parent the court designates as the legal mother can find some theoretical justification. This situation grants the courts substantial discretionary power. In the absence of specific laws and regulations for guidance, rulings on parentage in surrogacy cases often rest largely on the court’s own interpretation.
Difficulties in Balancing Interests
In this case, the court ultimately did not rule on the parentage issue, dismissing the lawsuit solely on the grounds that it “fell outside the scope of administrative litigation”. However, given Chinese traditional adherence to the principle of “mater semper certa est” (she who gives birth is the mother), the court would most likely have recognized Mei as the legal mother based on the “Doctrine of Birth”. This raises critical questions regarding Li’s status: Would she then have no parental rights over the child? If the court ultimately designates Mei as the mother, what legal avenues are available for Li to assert her rights?
These questions underscore gaps in current Chinese law concerning LGBTQ+ individuals and post-surrogacy remedies. Judicial practice is in urgent need of clear guidance to navigate these complex issues.
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