The contract signed between the surrogate mother and the client, at first glance, appears to be a consensual contractual act. However, upon closer examination, it is not difficult to discover that such a contract is illegal. Surrogacy involves human organs, sperm, etc., which can only be donated and not traded, a consensus that has been reached worldwide. In other words, the uterus of the surrogate mother and her parent-child relationship with the child are non-transactional and cannot become the object of a contract.
Surrogacy is commonly known as "renting a womb." The development of modern science allows surrogacy to be completed through in vitro fertilization or artificial insemination, without physical contact between the parties involved, making it seem more like the "rental" of a body organ. However, this "rental" behavior creates psychological and emotional ties between the mother and child, leading to emotional entanglements that are hard to sever. Moreover, who is the legal mother - the provider of the uterus or the provider of the egg - remains a practical problem that needs to be resolved.
Since surrogacy is an act that violates Chinese laws and goes against moral ethics, effective measures must be taken to curb it. First, relevant laws need to be improved as soon as possible, clarifying the legal responsibilities of illegal surrogacy acts and the functions of supervisory institutions. Relevant functional departments should also face the fact that surrogacy already objectively exists, strengthening the investigation and punishment of related surrogacy websites and institutions, severely cracking down on illegal black market intermediaries and headhunters engaged in matchmaking, and punishing medical institutions and related staff for illegally providing surrogacy services.
In real life, there are not a few ethical, legal, and emotional disputes arising from surrogacy. Since children born through surrogacy have "unjustified origins," many become "black households," leading to disputes over guardianship rights. The invalidity of surrogacy contracts makes it difficult for surrogate mothers' rights to be legally protected. In case of accidental miscarriage, they may not only receive no compensation but also face the risk of having to return the surrogacy commission and living expenses. The emotional needs of surrogate mothers cannot be met: some surrogate mothers cannot let go of their maternal feelings after giving birth, leading to disputes and lawsuits with the entrustors; others develop feelings for the entrustors, causing extramarital affairs, family disputes, or even serious cases. Due to the contradiction between the behavior of surrogate mothers and traditional ethics and morality, some surrogate mothers have to bear enormous moral pressure.
Chinese law explicitly prohibits such behavior. In the "Management Measures for Human Assisted Reproductive Technology" issued by the Ministry of Health in August 2001, it is clearly stipulated that the application of human assisted reproductive technology can only be carried out in medical institutions and must be for medical purposes, conforming to national family planning policies, ethical principles, and relevant legal provisions. Medical institutions conducting human assisted reproductive technology that violate these regulations, engage in the buying and selling of gametes or embryos, or implement surrogacy technology, will be warned by the health administrative department of the provincial, autonomous region, or municipal government, fined less than 30,000 yuan, and the relevant responsible persons will be administratively disciplined; if a crime is constituted, criminal responsibility will be pursued according to law. That is to say, even medical institutions engaged in assisted reproductive technology can only cultivate test-tube babies, and artificial surrogacy is illegal. However, current laws do not impose restrictive provisions on behaviors such as "surrogacy intermediaries," "surrogacy headhunters," and "surrogate mothers." It is these legal blind spots that allow some people to exploit loopholes.