China's population crisis could give women greater reproductive rights, but hurdles remain

Grappling with a population crisis and plunging birth rate, China is embracing a pronatalist policy that could see it lift highly restrictive and controversial policies on women donating and freezing their eggs.

Public support has also been growing online in recent weeks, after the National Health Commission (NHC), China's top health authority, said in December that it had "started revising rules and standards relevant to assisted reproductive technology, based on wide consultations with experts".

The statement flew under the public radar until suddenly gaining traction on social media last month.

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Additionally, the NHC said it would push for the legislation of assisted reproductive technology, strictly prohibiting its misuse, while stepping up the crackdown and prosecution of illegal activities, as part of its efforts to adapt to people's reproductive needs and rights.

The shift came as recent data on China's birth rate raised red flags about the nation's population growth.

Official figures show that China's overall population reached 1.4126 billion last year, while the number of new births fell for a fifth consecutive year to 10.62 million - an 11.5 per cent drop from 2020, which contributed to an overall population increase of just 480,000.

And like in other countries with rapid economic development, Chinese women are embracing motherhood at an increasingly later age. About one in seven women gave birth at the age of 35 or above in 2017, according to the most recent available NHC data.

Meanwhile, the national infertility rate appears to be worsening in the world's most populous country.

Last year, the results of a national reproductive health survey led by Qiao Jie, a reproductive doctor and biologist, showed that China's infertility rate rose from 12 per cent in 2007 to 18 per cent in 2020, meaning that one out of every 5.6 couples of childbearing age were facing difficulties making a baby.

An increasing number of married couples are also turning to in vitro fertilisation, whereby an egg is fertilised by sperm in a test tube or elsewhere outside the body.

According to a report published by Dongxing Securities in 2020, industries related to assisted reproductive technologies have a potential market value of US$321 billion in China.

But despite the massive potential market, as well as the presence of technology to perform such procedures, access is largely limited in China. Only married women with specific medical conditions, such as infertility or a tumour, are permitted to freeze their eggs, and any form of surrogacy is illegal.

Teresa Xu Zaozao, a 33-year-old unmarried woman, was thwarted in her attempt to freeze her eggs, and the potential institutional changes cannot happen soon enough for her.

In 2019, Xu, a prolific writer on gender issues, sued the Beijing Obstetrics and Gynaecology Hospital for refusing to freeze her eggs because she could not provide a marriage certificate as required by law.

This kicked off the first legal battle of its kind in China, involving a single woman fighting for her right to reproduce, but the case remains unresolved following a court hearing in September.

She recently told the Post that she filed the lawsuit to secure the right to decide whether she wants to give birth.

"I don't want to be profiled as someone who thinks she must get married and have kids in the future, and who is only making this decision because she couldn't find a man to have a baby with," she said.

"I want people to see that I am holding a key of my own, and the fact that I can obtain and have ownership of the key itself is important."

Last February, the NHC said that medical risks and ethical issues were behind its ban on single women freezing their eggs for the purpose of delaying births.

It cited concerns such as health risks and emphasised the importance of following strict ethical rules to prevent the practice's commercialisation, while also speaking to the need to protect social welfare.

In addition to unwed women not being able to legally freeze their eggs, having children out of wedlock can still be met with difficulties and pushback in China, including traditional and societal pressures.

But as Chinese women have collectively gained a greater voice and become more financially independent, women's reproductive rights have been receiving more attention, and whether unmarried women should be able to legally freeze their eggs in China has been a hotly debated topic in recent years.

Back in July 2018, the state-run China Daily conducted a poll on Weibo - China's version of Twitter - asking "whether unmarried women have the right to give birth through assisted reproductive technologies".

The results were overwhelmingly affirmative, with only about 200 out of 31,000 respondents voting "no".

The nation's family-planning policies have somewhat vacillated in the past and took a pronatalist turn in 2016 as Beijing eased its strict one-child policy - in effect for 36 years - to tackle sinking birth rates that have only continued to decline.

Birth restrictions were further relaxed last year as China allowed couples to have up to three children. The revised law included support measures to encourage people to have bigger families, including financial, tax, insurance, education, housing and employment measures.

Chinese authorities at all levels of government have since been casting about for ways to encourage women to have more children to counter the falling birth rate.

Against this backdrop, the provincial health commission of Hunan said in August that it would recommend legalising egg-freezing and egg donations to the National Health Commission.

"Allowing single women to freeze their eggs with conditions is a practical demand," the provincial health authority said. "Suggesting that women freeze the eggs first, and thaw them later with a legal birth certificate, is a feasible solution."

On the other hand, some have raised ethical concerns about the legalisation of egg donations, suggesting it could fuel the black-market trade of eggs and result in the exploitation of underprivileged young women.

The black market for eggs has long existed in China, and illicit stickers and ads soliciting college students to sell their eggs can still be found in places such as women's bathrooms.

The accessibility of assisted reproductive technologies, including egg donations and surrogacy, is not just a legal issue, it also has serious ethical implications, according to Yuan Xin, vice-president of the China Population Association and a professor of demography at Nankai University in Tianjin.

"Countries where egg and sperm donations are legal have clear laws to keep the biological parents a secret," Yuan said, adding that some countries also limit the number of children a sperm donor may give rise to.

"But if someone were to abuse the laws or illicitly donate too much sperm to breed many children, there could be potential risks of incest or consanguineous marriages in future generations.

"The legal and ethical issues involved in surrogacy are even more complicated."

"My position on this is simple: the loosening of laws on surrogacy, egg and sperm donations - simply due to low birth rates - could cause more terrifying consequences. The practical matters are extremely complicated, and it's not just about raising birth rates. All parties' rights must be legally protected."

But independent demographer He Yafu contends that China should protect all women's reproductive rights, including the right to freeze their eggs.

"China didn't protect their reproductive rights in the past because it was worried they might exceed the [child] limit," he said.

"But now the population policy has turned to pronatalism, so it needs to protect not only the reproductive rights of married couples, but also those of single women."

Meanwhile, China's reproductive restrictions have not deterred those with the means and opportunity to seek other options abroad. For instance, Chinese film star Xu Jinglei revealed in 2015 that she had visited the United States for an egg-freezing procedure in 2013, sparking public debate.

She referred to freezing one's eggs as a form of fertility insurance that extends a woman's reproductive capability.

The topic of surrogacy, and the ethical issues surrounding it, also arose last year as actress Zheng Shuang set off a furore when people learned that she had two surrogate children in the United States with her former boyfriend and had abandoned them after an acrimonious break-up.

And just last month, it was revealed that a 33-year-old Shandong-based businesswoman in eastern China, Li Xueke, had gone to Thailand four years ago and gave birth to triplets through in vitro fertilisation. The news quickly went viral.

Unlike the United States and Europe, where extramarital births account for about 40 per cent of the total, there is no official Chinese data on the birth rate among unwed women.

Whether that changes as China aggressively moves to boost its birth rate remains to be seen, but for now, Xu and countless others are eager to see real progress to protect their reproductive rights.

"I still don't have an urgent need to become a mom, but the need to freeze my eggs is getting more and more pressing, because they are getting older," Xu said.

"If it's completely hopeless to free my eggs at home, I will consider saving money to do it abroad. But this is not the best outcome. I still want to insist on my lawsuit and freeze my eggs at this hospital [in Beijing]."

This article originally appeared on the South China Morning Post (SCMP).

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