Recently, “ Surrogacy ” The word "hot search" has firmly occupied the list of hot search, and the heat of ethical and legal discussions around it remains high
Although surrogacy is illegal in China, there are still a few individuals who take risks regardless of the law
In January last year, the China judicial documents website published the judgment of a lawsuit centered on “ Surrogate pregnancy in the United States ” From failure
Tianyancha app shows that the defendant of this lawsuit is Meiyun International Medical Investment Development Co
, Ltd
(hereinafter referred to as “ Meiyun ”) Founded in August, 2015, the company is registered in Putuo District, Shanghai
Its business scope includes import and export of goods, import and export of technology, investment management, health information services (excluding diagnosis and treatment services), etc
Surrogacy is forbidden in China
Why is a Chinese institution involved in surrogacy litigation? What role does it play? The judgment shows that the pregnancy agency is happypregancycare%26amp; Medicalinvestmentmanagementco, Ltd (hereinafter referred to as “ American pregnancy Medical Center ”) The designated cooperation unit in China is responsible for providing pre consultation services for IVF related treatment
In other words, the pregnancy agency is equivalent to providing “ Intermediary service ”
According to the judgment, another defendant, WangQingqing (a pseudonym), a salesman of the agency, also mentioned that the agency is the domestic agent of the American pregnancy medical center, engaged in intermediary services between customers and the American pregnancy medical center, and assisted customers in inspection, information, guidance, visa handling, etc
in China
So, what is the attitude of the court in case of a dispute arising from the failure of surrogacy and both parties go to the court to safeguard their respective interests? Plaintiff Wang: the surrogacy failed and the refund failed
In November 2016, Wang, who lives in Beijing, met Wang Qingqing, a comrade in arms who was transferred from the army through the wechat group
Wang Qingqing claimed to be engaged in the surrogacy business in the United States in the United States, and gave her the United States pregnancy agency and a company named happypregnancycare% 26amp; MedicalInvestmentManagementCo。， Ltd。 The publicity materials of American surrogacy service agencies promise the legitimacy of surrogacy in the United States
After that, Mr
Wang and his husband conducted reproductive function and disease screening and physical examination in China at their own expense
Wang introduced that Wang Qingqing said that she would submit her physical examination report to the American pregnancy Medical Center for evaluation
The more critical indicator is that the ovarian function is good, and the one-time promotion rate is high
On march4,2017, Wang signed a service contract and a contract with Wang Qingqing and Zhan, the leader of the pregnancy agency, on the issues of embryo transfer and surrogacy at the offices of the two agencies in Chaoyang District, Beijing
It was agreed that the pregnancy agency and the American pregnancy medical center would provide Wang with surrogacy services
According to the contract, Wang paid a surrogate service fee of 19 to the American pregnancy medical center
980000 US dollars
According to the service contract, Wang should pay the defendant Meiyun agency a service fee of RMB 275724, that is, 20% of the total service fee
On april13,2017, Mr
and Mrs
Wang rushed to Los Angeles
During the period of residence and drainage promotion, it was found that there was a great difference between the hospital and the defendant's previous introduction
On may10,2017, none of the 12 eggs taken out by Wang had been cultivated into qualified embryos
Wang believes that this is the same as the “ The result of the plaintiff's egg is very satisfactory ” Is completely inconsistent with what you said
After that, Mr
Wang negotiated the refund with the pregnancy agency, but failed to reach an agreement
Mr
Wang believes that the beauty pregnancy agency uses “ Paid surrogacy in the United States ” As the main business, American Meiyun medical center, as a foreign enterprise, without the approval of the Chinese approval authority and registration with the competent authority, carries out business in China in the name of Shanghai reception office and Beijing reception office, and formally adopts the split method to sign service contracts and contracts with Meiyun institutions
She also believes that paid surrogacy is expressly prohibited by Chinese law, so both contracts are invalid, and the pregnancy agency should refund the service fee it collected and compensate for the corresponding losses
Wang Qing is not an employee of the defendant Meiyun institution, and is not a duty act
He shall be jointly and severally liable for the return and compensation of the defendant Meiyun institution
Therefore, Mr
Wang filed a lawsuit to the court: first, confirmed that the service contract signed between him and the pregnancy agency on march4,2017 was invalid; 2、 The pregnancy agency returned Wang's surrogacy service fee of 275724 yuan; 3、 The pregnancy agency shall compensate the plaintiff for transportation, accommodation, notarization, lawyer service and other expenses; 4、 WangQingqing shall be jointly and severally liable for paying off the claims in Items 2 to 3 above; The legal costs shall be borne by the defendant
Pregnancy agencies “ Toss the pot ”: After the plaintiff went abroad, we were not clear about Wang's accusation
The pregnancy agency argued that the defendant's pregnancy agency was registered in China and did not operate surrogate business
The beauty pregnancy agency emphasizes that the specific medical services are the agreement between the customer and the beauty pregnancy medical center in the United States
The agency said that in view of the cooperative relationship with the American pregnancy medical center, the agency helps domestic customers who are interested in receiving medical services from the American pregnancy medical center to connect and communicate, and provides other services in accordance with the contract, including consulting surrogacy information, handling visas, etc
, while charging corresponding fees
The specific medical services are the agreement between the customer and the American pregnancy medical center
The pregnancy agency said that before the plaintiff went abroad, the agency controlled the ovulation period for the plaintiff through medical means and made preliminary preparations for surrogacy
On april13,2017, the plaintiff and his wife rushed to Los Angeles
As for the situation after arriving in the United States, the defendant was not clear
The services provided by the American pregnancy medical center were not decided by the defendant
The pregnancy agency said that during the plaintiff's stay in the United States, Wang Qing kept in touch with the plaintiff
Before returning to China, the plaintiff was always satisfied and did not raise any objection
After the plaintiff learned that all the embryos were unqualified, he expressed his dissatisfaction to the defendant
The pregnancy agency emphasizes that the obligations agreed in the service contract have been fulfilled
At the same time, the actual place of performance of the main contract involved in this case is California, the opposite party of the contract is the plaintiff and the American pregnancy medical center
The service contract is only a subordinate contract and does not violate Chinese laws and regulations
The defendant's pregnancy agency provided services to the plaintiff not entirely based on the service contract, but mainly based on the cooperation agreement between the defendant's pregnancy agency and the American pregnancy medical center
The beauty pregnancy agency emphasized that the RMB 275724 paid by the plaintiff was in essence part of the surrogate service fee paid by the plaintiff to the American Beauty pregnancy medical center, and the defendant beauty pregnancy agency should receive a commission from the American Beauty pregnancy medical center, that is, the cooperation service fee, so the fee paid by the plaintiff was directly paid to the defendant beauty pregnancy agency on behalf of the American Beauty pregnancy medical center
In conclusion, the pregnancy agency disagreed with the plaintiff's claim
Court: the surrogate contract is invalid! The court held that a civil subject engaged in civil activities shall not violate the law or public order and good customs
According to the facts found out in the trial, the plaintiff entered into a contract with the American pregnancy Medical Center for surrogacy in the United States, which violated the basic public order, good customs and social public interests, and was prohibited by the current laws of China
Therefore, the surrogacy contract signed between the plaintiff and the American pregnancy medical center should be deemed invalid
The defendant's pregnancy agency signed a service contract with the plaintiff knowing that the surrogacy was illegal
Even if the services it provided only involved the connection between the plaintiff and the American pregnancy medical center, and the preparation of the plaintiff for the surrogacy in China, they were still services based on the surrogacy, which was not a legal act permitted by law
Therefore, the Court confirmed that the service contract was invalid
The invalid contract is invalid from the beginning
The service fee charged by the defendant Meiyun institution based on the service contract should be refunded
Therefore, the court supports the plaintiff's claim that the defendant Meiyun institution should refund the service fee of 275724 yuan
As for the loss of service fee interest claimed by the plaintiff and various losses caused by the plaintiff's surrogacy and litigation in the United States, based on the fact that the surrogacy is not licensed in China as stated in the service contract, the plaintiff knows that the surrogacy act is illegal
In the case that the contract is invalid and both parties are at fault, their respective losses shall be borne by themselves
Accordingly, in accordance with Article 8 of the general provisions of the civil law of the people's Republic of China and Articles 52 and 58 of the contract law of the people's Republic of China, the judgment is as follows: 1
The service contract signed between the plaintiff Wang and the defendant Meiyun International Medical Investment Development Co
, Ltd
on march4,2017 is invalid; 2、 The defendant Meiyun International Medical Investment Development Co
, Ltd
shall return RMB 275724 yuan to the plaintiff Wang within 10 days from the date this judgment takes effect; 3、 Other claims of the plaintiff Wang are not supported
