8 August 2015
Genetics became the determining factor in a recent custody dispute in China.
Following the death of their son, a couple sought custody of their 5 year old twin grandsons on the basis that their son’s wife had no legal relationship to the children. Despite being listed as the biological mother on the birth certificates, evidence was introduced to suggest that the woman was not genetically related to the twins but that they were surrogate born. As surrogacy is illegal in China, the couple argued that she could not claim a legal relationship to the children. The court agreed, awarding custody to the grandparents.
Lawyers for the woman subsequently claimed that the illegal nature of the surrogacy arrangement should have been an irrelevant consideration in the present case: “the mother can be blamed for the illegal way she got her babies, but that has nothing to do with guardianship. It’s unfair that she lost the children… she’s taken care of them since they were born for 5 years and done them no harm. It’s wrong to take her children just because she is not the biological mother.”
The outcome of the decision might have been influenced by its timing. The Chinese Central Government (along with several individual provinces) has recently announced plans to ‘punish’ medical personnel involved in surrogacy services, and to ‘cleanse’ any media sites advertising for surrogacy services. The Nationwide campaign will involve 12 Government Agencies, and take place over 9 months. This campaign appears to be a response to increasing use of surrogacy in China. While surrogacy is illegal in China, this prohibition appears to be largely ignored. A clinic, which receives on average 510,000 yuan for a surrogacy arrangement, is unlikely to be deterred by a maximum fine of 30,000 yuan. In 2009 a Guangzhou newspaper reported that there were an estimated 25,000 surrogate born children living in China. It is likely that this number has dramatically increased since then, as it has in many other countries. In 2012 a study revealed that infertility amongst women of child-bearing age had increased from 3% two decades ago to 12%. One company in the Guangzhou province recently revealed that it was involved in around 300 cases per year.
One wonders if the removal of the children in this case was a way of punishing the woman for entering into an (illegal) surrogacy arrangement (see recent European Court of Human Rights cases) or whether the court genuinely believed that the children’s best interests were to live with their genetic grandparents. Either way, these children have lost both their father and mother (in their eyes, at least) in a short period of time.