CHINESE couples who have trouble conceiving are still barred from legal access to surrogacy services. Is government policy about to change? The debate is on, while the black market thrives.

A recent article in People’s Daily has triggered heated debate about whether surrogate pregnancy should be legalized in China.

Currently, the medical practice of basically borrowing another woman’s womb — and in some cases, eggs — to produce a baby is totally banned here.

With trading eggs, sperm or embryos illegal, a black-market trade in human-assisted reproduction has become widespread. Some wealthy couples go abroad to countries like the United States to engage in surrogate parentage, with the additional benefit of American citizenship for the baby.

People’s Daily quoted experts who argued that the plight of infertile couples is being ignored. It said the new “two-child policy” makes about 90 million Chinese families eligible to have a second child, but 50 percent of eligible wives are older than 40, making conception harder.

The article prompted some people to surmise that the government is contemplating a policy change, with fierce debates flaring up over the practicality, morality and social implications of surrogate parentage. The National Health and Family Planning Commission spokesperson Mao Qunan finally addressed the issue at a recent media conference.

“It is very complicated, involving moral, legal and social factors,” Mao said on Wednesday. “Such a practice is prohibited in many countries across the world. We have been cracking down illegal agencies providing such services and we will continue to do that in the future.”

Online polls found an overwhelming number of respondents opposed to the practice, especially women.

“Accepting the practice of surrogacy is like putting a price tag on wombs — turning reproduction into a commodity,” says 32-year-old Li Qi’an, who is married with one daughter.

“My in-laws have been trying to convince me to have another child,” she adds. “Though they haven’t really said it aloud, they have made it quite obvious they want a grandson. It makes me feel like a reproduction machine.”

Proponents argue that surrogate parentage would free women from the pressure to have children, since the “duty” could be passed on to someone else for a fee. They cited the example of women who face employment discrimination because they haven’t become mothers yet.

“We don’t shun women who may get pregnant in the future,” says Lily Zhou, a personnel officer at a logistics company in Shanghai. “But practically speaking, if we have multiple candidates for a job, we do have to consider the cost of replacements during maternity leaves, which can now occur twice. I often suggest to married women in their late 20s and early 30s that they not change jobs until after they have given birth because not all companies are fair in that respect.”

Medical and legal experts tend to take a more sympathetic attitude than Internet poll respondents. Many of them say surrogate pregnancies could be handled in a regulated and sensitive way to avoid the practice turning into a massive baby-production industry.

“The black market exists precisely because of the conflict between policy and human needs,” said Fan Minsheng of the Shanghai University of Traditional Chinese Medicine and also deputy head of the Shanghai Medical Morality Association.

“It is the only way for infertile couples to have their own children,” he told a press briefing. “Certainly, it must be regulated and well managed, but it probably should not be completely prohibited. Regulations could determine who is eligible, who can be surrogate mothers, what institutions can be certified to provide the service, what fees should be charged and what are the child’s legal rights.”

If legalized, the practice must be kept non-commercial, he added.

Many doctors have expressed similar support for a restricted relaxation of the ban, mainly to help the 15 percent of Chinese couples who suffer infertility issues. Many of those couples resort to in vitro fertilization (IVF), a medical procedure whereby an egg is fertilized by sperm in a test tube. The procedure has a success rate of between 40 percent and 60 percent.

Currently, surrogacy is prohibited by regulations issued by the National Health and Family Planning Commission. The draft for the new two-child law amendment at the end of 2015 contained language continuing the ban on surrogacy. However, that wording was absent when the law was finally passed. Legislators said the issue was so complicated that they needed more time and research to discuss it.

The black market in surrogate births is huge, despite a continuing crackdown on illegal agencies.

“If you are a doctor or hospital caught in the practice, you get a warning or professional expulsion,” a Shanghai-based surrogate agent surnamed Yang tells Shanghai Daily. “But for us, if we are caught, we get a fine and our website is shut down. So we just change our name, get a new website and we’re back in business. The profits are just too big to walk away from.”

Yang, who has been in the business for over 10 years, says the numbers of clients and competitors have spiked in the last three years. She charges about 650,000 yuan (US$94,614) for a baby, using the customer’s own egg, and 950,000 yuan for a birth of a specific gender, usually boys. She showed Shanghai Daily photos of young women, many of them university students, who provide eggs.

“Good-looking college girls are preferred as egg donors,” Yang says. “I also have customers who specifically ask for foreign girls because they want beautiful Eurasian babies. We have some young foreign women as donors.”

She says surrogate mothers are typically older women and middle-aged couples who want a son.

The business is not without risks. In addition to concerns about law enforcement, Yang says some clients bail out before a baby is born, leaving her out of pocket.

“The practice is illegal, hence the contract with the parties involved is meaningless,” says Frank Liu, a lawyer specializing in family affairs. “There have been some cases related to surrogacy appearing in the courts, but rulings vary and are imprecise since there is nothing in law to define the relationship between intended parents, the child and the surrogate mother.”

He cites one case where a surrogate mother wanted to keep the baby. The intended parents sued for custody. Since the contract wasn’t recognized in law, the court ruled that the baby went to the surrogate — or biological — mother, while the biological father was responsible for support payments.

In another case in Shanghai last year, a widow fought for custody of twins sired by her husband’s sperm but not produced from her eggs. After the husband died, his parents sued for custody of the children, arguing that their daughter-in-law was not the biological mother. The court ruled that she had functioned in the role of stepmother and granted her custody of the twins.

“A lot more work has to be done to provide the legal framework for these complicated situations,” Liu says.

Looking overseas may not provide any simple answers. France, Italy, Spain, Germany and Portugal, among other countries, prohibit all forms of surrogacy. In countries such as the UK, Ireland, Denmark and Belgium, surrogacy is allowed only when the surrogate mother is not paid beyond “reasonable expenses.”

Commercial surrogacy is legal in some states in the US and in countries like India, Russia and Ukraine.