Original title: the crime of organizing surrogacy to abduct and sell children? Case: Yuanwu and Jinmei (both pseudonyms) are from Xinjiang
In 1999, the two divorced people reorganized their families
In that year, Yuanwu was 51 years old and Jinmei was 33 years old
They each had a daughter before
In 2002, the two husband and wife gave birth to a daughter, which was regarded as a treasure
However, in 2014, a car accident killed a 12-year-old girl on the spot
The latter two were unable to get rid of the pain of losing their daughter
In 2016, they decided to have another child
At that time, Yuan Wu was 68 years old and Jin Mei was 50 years old
After seeking medical treatment everywhere, they found nothing
Later, a surrogate agency in Beijing took the initiative to contact the two couples
They were eager to have children, accepted the surrogate scheme, and signed a surrogate contract with the surrogate agency in march2017
The original surrogacy scheme was: yuanwutizi, a third party donated eggs, formed embryos, and then transferred to the surrogate mother's womb
The surrogate mother gave birth to a child for the two couples after October pregnancy
Therefore, the two had to pay 650000 surrogacy fees for one time
However, after inspection, Yuanwu's sperm was of poor quality and could not form an embryo
After a period of hesitation, the two agreed that the sperm would also be provided by a third party and that they would find a surrogate
In this way, the child actually had no biological genetic relationship with the two couples
In june2017, the embryo transfer was successful
On march22,2018, the surrogate mother gave birth to a baby boy and handed the baby over to Yuanwu and his wife
On April 4, the couple found that the child's father was Yuanwu and the mother was the name of the surrogate mother on the child's birth certificate
The couple could not accept this
The premise of accepting surrogacy was that the names of the couple could be written on the child's birth certificate
However, due to the current situation, the two people do not know how to explain to the child in the future
What should we do if the child is estranged from them in the future? How does the child settle down? And so on
The negotiation between the two sides failed
The yuans complained to the media and the public security organ about this matter
After the media reports and the intervention of the public security organ, the surrogacy behavior lurking underground was exposed to the sun
The social response to this case is huge
Truking Metropolis Daily has made a large report on this case
For details, click this link: https://www
truking
com
thepaper。 cn/newsDetail_ forward_ After the public security organ intervened in the 2071789 case, it was considered that the case was suspected of a crime
As for the crime committed, after discussion with the prosecution, they decided to temporarily file a case for the crime of abducting and trafficking in children, and arrested Zhang, a surrogate agent who was responsible for taking care of the surrogate mother, and detained Zhang on the grounds of suspected crime of abducting and trafficking in children
At present, the case will be reported to the procuratorial organ for examination and approval of arrest
Lawyer's opinion Zhang's family was very worried after learning about the situation, and entrusted wujianbao, a lawyer from Hubei baokai law firm, to defend Zhang
This is the first time that the center has accepted such cases
In practice, such cases are also very rare
The center attached great importance to it and immediately organized lawyers to study and discuss
We believe that the case does not constitute the crime of abducting and trafficking in children, nor does it constitute other crimes
There are three reasons: first, the criminal law does not specifically prohibit surrogacy and surrogacy intermediary acts, and there is no criminal basis for treating the commercial surrogacy act participated in by the suspect Zhang as a crime
At present, the regulations on surrogacy technology in China mainly include the administrative measures for human assisted reproductive technology promulgated by the Ministry of health in February2001, "medical institutions and medical personnel shall not implement any form of surrogacy technology
" There are only prohibitive provisions for medical institutions to implement surrogacy technology, but there are no provisions to define it as a criminal act, and there are no corresponding provisions in the current criminal law
Therefore, it is against the basic principle of legality in China's criminal law to recognize Zhang's behavior as a crime
2、 This case does not conform to the essential characteristics of the crime of abducting and selling children
The essence of crime is serious social harmfulness
Different social harmfulness is the key to distinguish this crime from that crime
In theory, social harmfulness is also called legal interest
In other words, the different infringement of legal interest determines the type of crime and the establishment of different charges in the same type of crime
On the surface, the act of surrogacy in this case is indeed in line with the characteristics of the crime of trafficking in children, especially the provisions of Articles 16 and 17 of the opinions on punishing the crime of trafficking in women and children according to law issued by the higher people's court, the higher people's Procuratorate, the Ministry of public security and the Ministry of justice
However, after careful deliberation, it will be found that the act of this case is not the same as the crime of trafficking in children in essence
The two are only similar in form, not in spirit
There are two more key differences between the two: first, the subject matter of the crime of child abduction and trafficking must not belong to the buyer
In this case, although the child born by surrogacy has no biological relationship with Yuanwu and Jinmei husband and wife due to special circumstances (sperm donation and egg donation by a third party), according to the surrogacy contract, the three parties involved in the case have attributed the parental rights of the child to Yuanwu and Jinmei husband and wife, and Yuanwu In fact, Jin Mei and his wife have also realized parental rights (the children are indeed raised by Yuan Wu and Jin Mei)
Therefore, it can be understood that Yuan Wu and Jin Mei are spending money to cultivate their own children, which is an act of interest to the children, Yuan Wu and Jin Mei
There is no serious social harm such as separation of flesh and blood, family mutilation and so on inevitably caused by the crime of abducting and selling children, that is to say, There is no violation of the legal interests of the crime of abducting and selling children in this case
How can it be defined as the crime of abducting and selling children? The acts of all parties in this case mainly infringe on ethics and social customs, which is completely different from the legal interests infringed by the crime of abducting and selling children
It is obviously wrong to mix them together
2、 The subject matter of the crime of trafficking in children is children, but this case is not
To be exact, it is the whole pregnant process and result
Although babies are also a part of the subject matter of the sale, they are not all
The scope of the crime of trafficking in children can not cover all the acts of the case
It is obviously inappropriate to forcibly crack down on the crime of trafficking in children, which belongs to small shoe covers and big feet
3、 If the act in this case is defined as the crime of abducting and trafficking in children, it will inevitably bring another thorny problem
Since it is abduction and trafficking, the child should be returned to his parents or other guardians according to law, circumstances and reason
But in this case, who else does the child belong to? Is it more beneficial to the children? Therefore, from this perspective, we can see the absurdity of treating this case as a crime, especially characterizing it as trafficking in children
In addition, according to the existing legislative literature and scholars' point of view, China has indeed considered bringing surrogacy into the scope of criminal law, but the legislation has not been realized because of too much controversy
Therefore, the center believes that, in the absence of legal regulation of the act in this case, the case should not be treated as a crime in accordance with the International (China has also adopted) prevailing principle of legality of crime and punishment, let alone the artificial conviction and punishment of the crime of abducting and trafficking in children
On the contrary, government agencies should take the case as an opportunity to promote relevant legislation on the one hand, and solve the practical problems in surrogacy on the other hand
Because once the child is born, it is impossible to return to his mother
The child is innocent
The above case is handled by Hubei baokai law firm
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