China’s National Health Commission bans single women from freezing eggs: with or without legal and ethical justifications?

By Hao Wang.

Theresa Xu, ‘the first Chinese single woman to sue for her right to freeze eggs,’ lost her lawsuit last year. In 2020, Xu, then 30, sought to freeze eggs in a hospital in Beijing. Xu was not ready to be a mother then, but thought she might want to be one in the future. Therefore, she hoped to preserve fertility through oocyte cryopreservation – also known as ‘elective,’ ‘social,’ or ‘non-medical’ egg freezing, to give her future self more options. However, she was told that the egg freezing service was not open to single women.

Feeling unfairly treated, Xu sued the hospital for discriminating against unmarried women. The case underwent several trials before the court held that the hospital’s refusal of service was not discriminatory and fully complied with the current medical regulations. Indeed, according to a series of regulations and ethical principles issued by China’s former Ministry of Health (the predecessor of today’s National Health Commission), which are still in effect today, assisted reproductive technologies (ART) can only be applied for by infertile married couples.

In China, egg freezing technology first attracted public attention in 2015 when a famous movie star revealed in an interview that she had frozen eggs overseas. In recent years, an increasing number of Chinese women have been interested in freezing eggs. Some already paid high fees to freeze eggs abroad. Xu’s lawsuit made egg freezing a hot topic across the country again, prompting reflections on the legitimacy of the National Health Commission’s current policy.

Whether single women can legally freeze eggs in China is more than a legal issue. Although the constitution and national laws do not explicitly deny single women’s reproductive rights, nor prohibit single women from using ART, if single women’s egg freezing is found to be contrary to ethics or public interests, the ‘public order and good customs’ principle of the Chinese Civil Code and the ‘fundamental right restriction clause’ of the Constitution can provide a legal basis to bar unmarried women from egg freezing service.

In terms of ethics, the issue of whether single women’s egg freezing is ethical in China can be broken down into two parts. One is whether freezing eggs for ‘non-medical’ reasons is ethical, a controversial issue worldwide. Frequently raised concerns include the medical risks involved, issues associated with exploitation, the medicalisation of social phenomena, as well as the issue that women may have ‘false hope’ about the success rates of egg freezing.

The other question, which is more culturally specific, is whether it is ethical for single women to use ART. The National Health Commission believes that it is unethical for unmarried women to have children through ART, which reflects China’s traditional culture that considers ‘reproduction’ and ‘marriage’ closely linked and sees out-of-marriage childbirth as unethical. While ‘single women preserving fertility through freezing eggs’ and ‘single women using ART to give birth’ are very different, some are concerned that lifting the egg freezing ban for unmarried women may trigger a so-called ‘slippery-slope effect’, gradually weakening the traditional linke between marriage and childbearing.

My paper provides an ethico-legal analysis of the National Health Commission’s current policy prohibiting single women from freezing their eggs. I conclude that the ethical arguments against single women’s egg freezing, including the aforementioned ‘slippery-slope effect theory,’ are insufficient to justify a ban that categorically refuses to respect the needs of many single women to preserve fertility against the threat of time.

 

Paper title: Single women’s access to egg freezing in mainland China: an ethicolegal analysis

Author: Hao Wang

Affiliations: Hangzhou Normal University, China

Competing interests: Non-declared.

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