Legal Law

Can a Chinese language Movie star Actually Simply Forsake Their Surrogate-Born Infants?

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The most recent surrogacy scandal is that of a Chinese celebrity who was accused by her ex-boyfriend of abandoning their two US-born surrogate children. Chinese actress Zheng Shuang had entered into a romantic partnership with Chinese television producer Zhang Heng in recent years. Last week, Zhang announced on Weibo (like Chinese Instagram) that he has been stuck in the US for a year, taking care of the couple’s two children who Zheng left. He posted pictures of the babies’ birth certificates – one born in Colorado in December 2019, the other born in Nevada in January 2020, with “Shuang Zheng” as the mother and “Heng Zhang” as the father.

Is it true?

Many of us don’t tend to trust social media posts. But there is definitely evidence that Zhang has the receipts. The story was picked up by a number of news sources including The New York Times and CNN. While the American media has been criticized on both sides of the aisle, I have to believe that some of the larger news outlets would have checked some facts before publishing a story about the incident. And as a Colorado attorney, as well as the parent of a Colorado born child, I can tell the Colorado birth certificate looks real.

She’s not the first celebrity to change her mind

Unfortunately, this isn’t the first time an intended parent in a surrogacy arrangement has changed their mind about their desire to raise their children. Although that number is a few years old, assisted reproductive technology attorney Andrew Vorzimer previously shared the statistic that of over 148,000 replacement deliveries tracked since 1979, 13 pregnancy replacement deliveries have attempted to change their minds. 89 Intended Parents tried to change their minds. While Zheng’s situation is still very unusual statistically, it is certainly not the only one.

And Zheng isn’t the first celebrity in this situation, either. In 2016, former The View co-host Sherri Shepherd lost her court battle over parental obligations to her surrogate son. Shepherd and then-husband Lamar Sally took concrete steps to have a child together. They sought the help of a fertility clinic, received donated eggs, and formed embryos. The two signed a contract with a pregnancy carrier in Pennsylvania and arranged for her to undergo an embryo transfer procedure with her embryos.

When the couple separated during pregnancy, Shepherd refused to sign the paperwork to confirm that she was a legal parent of their child. The surrogate mother brought a lawsuit. Shepherd claimed she was implicated in the surrogacy agreement by Sally and should not be responsible for the child.

The court didn’t buy it. The judge found that Shepherd is one of the child’s parents and is responsible for sizable monthly child support payments.

Here Zheng was named as the mother of the children on the birth certificate. In Colorado, that would have meant she signed an affidavit stating that she was the mother of the child, along with a petition and supporting documents. A judge would then have issued an order naming her as a parent, and that order would have been attached to the birth certificate application when he walked from the maternity hospital to Colorado’s Vital Records. I assume the process is similar in Nevada.

There is no legal process for an intended parent – who is no longer so “intended” as they are trying to step out of parenthood – just to change their mind. And adoption would not be an option unless both parents agreed to put the children up for adoption. Under US law, Zheng is the parent of these children and has the same responsibility for their well-being as children she directly gave birth to.

Have laws been broken?

The Zheng case has exacerbated the discussion in China and elsewhere about the morality and legality of surrogacy. China is already banning its medical professionals from performing surrogacy procedures on their patients. However, that does not prevent Chinese citizens from going overseas for these proceedings. Zheng herself made a statement saying that “this is a very sad and private matter for me” and that she has not violated Chinese law. But what does US law say about abandoning a child as a surrogate mother?

Is surrogacy a red herring?

In every state in the United States, it is a crime to simply abandon a child. While the exact definition may vary in each state, Colorado includes the situation where “the parent has given up custody of the child for six months or more and has not shown any intention to regain custody of the child during that period did not make any legal arrangements to care for the child. “There is no exception for foreigners and no exception for the way the child was born. So it looks like Zheng could have serious legal problems if the story is consistent with the one reported.

Abandonment is at the tragic heart of this story. While I’ve never seen statistics, I suspect that children born through surrogacy are far less likely to be abandoned than children not born through surrogacy, as parents who become pregnant through surrogacy often get pregnant for a very long time. Most surrogate children are conceived for their intended parents after a long, difficult, and expensive journey.

There is a significant risk of drawing broad conclusions about Zheng’s actions relating to surrogacy in general. Her case is not a general comment on surrogacy, but specifically abandoning the child. It would be tragic if these circumstances were seen as a reason to exclude hopeful parents from assisted reproductive technology in general and willing and supportive pregnancy carriers to help them bring much-wanted children into this world.

Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].

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