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    How Assisted Reproduction Laws Keep Infertile Couples Childless

    Demand for procedures has surged, yet unequal access to treatment prevents couples from conceiving.

    Since the 1970s, assisted reproductive technology (ART) has allowed infertile couples to realize their dreams of parenthood. ART refers to the use of medical intervention as a substitute for one or more elements of the natural reproductive process. The term mainly covers two categories: artificial insemination, and in vitro fertilization and embryo transfer (IVF-ET).

    According to a joint survey by the China Woman and Child Development Center and the China Population Association, the country’s fertility rate is steadily declining. In 2012, it was estimated that there were about 40 million infertile or sterile individuals in China. Statistics released by the National Health and Family Planning Commission (NHFPC) show that as of late 2013, licensed health care providers had performed about 480,000 IVF cycles. However, the industry consensus is that up to 6 million people may stand to benefit from ART treatment, indicating the scale of the demand.

    ART is classified as a high-tech procedure, meaning that it is heavily regulated by the Chinese government. Hospitals wishing to offer ART procedures must first apply for permission from the NHFPC and must pass a review by a panel of the commission’s experts before being allowed to open a clinical practice. The NHFPC also conducts random inspections of licensed hospitals to ensure they are following established procedures in their clinical work.

    As of May 2015, there were about 450 health care providers licensed to offer IVF-ET services in China. ART procedures remain a rare resource, with the supply insufficient to meet the needs of infertile individuals. Even harder to find are high-quality ART health care organizations. According to a doctor at an assisted reproduction center in Beijing, on average, couples must wait a year before beginning ART treatment.

    Like the debate over organ donation, the question of how best to allocate the precious resource of ART treatment has become a prominent ethical issue within the medical profession. Currently, while Chinese policy and regulations limit the use of ART to medical purposes, there is no clear standard for allocating these resources among infertile individuals.

    The medical community and health care organizations have also failed to come up with a set of defensible ethical standards to guide them through the process of allocating ART resources. One prominent question that remains unanswered is whether age should be a factor in deciding who receives treatment. As the body gets older, fertility begins to decline — especially among women, who generally experience a rapid decline in fertility after the age of 35. This has led to discussions about whether older patients should be moved to the front of the line.

    The newly adopted two-child policy has heightened such problems. The demand for ART exploded after the policy took effect, making such procedures even harder to obtain. Many couples looking to have a second child are already past optimal childbearing age, and assisted reproductive technology plays an important role as they try to increase their chances of getting pregnant.

    The question of how to allocate ART resources has therefore become increasingly difficult to ignore. Most health care providers have adopted a strict first-come-first-served approach to the technology, regardless of whether the couple in question is trying for their first or second child. But should childless couples who currently have no chance at continuing their family line be given priority access to ART procedures? Many couples attempting to have their second child are already advanced in age. By forcing them to wait, their chances of successfully getting pregnant decrease dramatically. Should they be given preferential access to the technology? With demand having outpaced supply, how should we balance the issues of waiting time, age, and existing children to ensure equitable access to ART?

    The implementation of the two-child policy has also led to the commercialization of the ART industry. With such a large number of infertile couples in China, demand for sperm and egg donors, as well as for surrogate mothers, has surged. ART’s status as a highly sought-after medical intervention paid for out of pocket has naturally led some to try and profit off the current situation. Although Chinese law clearly prohibits the commercial sale of sperm or eggs, as well as all forms of commercial surrogacy, underground surrogacy agreements and sperm and egg sales are quite common — and have only grown more so since the announcement of the two-child policy.

    Due to the greater danger of complications inherent to egg donation and storage compared with sperm donation, there is also a shortage of willing egg donors. Currently, these donations remain the only option for women who wish to have children but who are unable to produce viable eggs of their own.

    As a result, some organizations in search of profit have turned to the illegal sale of eggs. The commercialization of this practice not only touches on issues of dignity and respect, but it can also cause direct physical harm to those who choose to sell their eggs. Sellers are often female university students lured by promises of money. The intermediary organization gives them medicine to induce ovulation and surgically removes their eggs. Sometimes, this procedure results in infertility, but in more serious cases the severe damage done to their ovaries can lead to death.

    However, with such a scarce resource in such high demand, the potential to make significant sums of money from sperm donation, egg donation, and commercial surrogacy has kept these practices alive, despite official bans. Lax oversight, light punishments, and the fact that the industry requires almost no capital to enter have all contributed to the proliferation of illicit practices. According to Chinese regulations, the purchase or sale of gametes, zygotes, or embryos or the commercial use of surrogates is punishable by a maximum fine of 30,000 yuan ($4,400).

    Such punishment is virtually meaningless when compared with the 20,000- to 30,000-yuan fee for each cycle of ART. Additionally, unlike the organ trade, China has not yet written the purchase or sale of gametes into the penal code, meaning that the responsible organizations and individuals cannot be tried or imprisoned, only fined. As a result, Chinese society is faced with the urgent question of how best to control their sale.

    Infertile couples’ desire to have their own biological children is both a natural and understandable impulse, and ensuring all such couples have equal access to ART procedures is a vitally important task on both an individual and societal level. The medical community and relevant government departments should work to comprehensively expand their medical, ethical, and policy research, and to pass legislation and regulate the ART market as soon as possible. The healthy and orderly development of assisted reproductive technology should be encouraged, while individual reproductive and health rights must be protected.

    Translator: Kilian O’Donnell; editors: Zhang Bo and Matthew Walsh.

    (Header image: A nurse holds the hand of a newborn baby lying in an incubator at a hospital in Xi’an, Shaanxi province, Dec. 11, 2014. Zhao Hang/VCG)