Reflections on appropriately liberalizing ART for groups requiring special attention in China

Abstract

Purpose

The continuous advancement of assisted reproductive technologies (ART) and the evolving attitudes towards marriage and fertility among the general public have led to an increasing number of groups requiring special attention (GRSA) desiring to fulfill their reproductive needs through these technologies. These groups include single women (including single mothers without children), same-sex couples, and women in high-risk occupations, among others. The purpose of this paper is to explore the feasibility of appropriately liberalizing ART for GRSA.

Methods

This paper discusses the advantages of a moderate liberalization of ART for GRSA from two perspectives: a theoretical basis and a practical significance level. It also analyzes the current constraints on liberalizing ART and presents suggestions for moderate liberalization.

Results

The moderate liberalization of ART can provide technical support for respecting and realizing the reproductive freedom of GRSA, which has certain theoretical and practical significance. However, it is also subject to constraints.

Conclusion

We call for government to keep pace with the times, based on the current stage of political, economic, and social development, to further recognize and protect citizens’ reproductive rights, prioritize the practical needs of the public, and explore policies and regulations for gradually loosening the restrictions on ART for GRSA.

Introduction

Since the birth of the world’s first test-tube baby at the University of Cambridge in the UK in 1978, the flourishing ART has become an indispensable part of modern medicine. Human ART refers to the use of medical techniques and methods to manipulate gametes, zygotes, and embryos for the purpose of achieving pregnancy. It includes artificial insemination (AI), in vitro fertilization and embryo transfer (IVF-ET), and various derived technologies. The widespread application of ART has provided more solutions for couples facing infertility and seeking to fulfill their reproductive needs. With the acceleration of modernization and the change of social values, more and more groups requiring special attention (GRSA) also want to realize their reproductive needs through ART, such as single women (including single mothers without children), same-sex couples, and women in high-risk occupations. However, in China, surrogacy and the implementation of ART for single women are not legally permitted [1, 2], and medical institutions are unable to provide fertility support services to these groups.

The theoretical basis

The development of reproductive medical technology has brought benefits to human society to a certain extent. However, it is worth pondering how to find a balance between ethics and law in the application of medical technology.

Support of ethics

The three ethical principles set forth in the 1979 Belmont Report stipulate that individuals, regardless of their health, marital status, or sexual orientation, should be afforded equal rights and freedoms to fulfill their reproductive needs without discrimination or prejudice to the interests of others [3, 4]. It is an affront to their dignity and respect to deny them the right to reproduce or to interfere in a paternalistic manner on the basis of numerical disadvantage or the incompatibility of ART with the values of the majority [5]. It is unjust to prioritize social management factors over the fundamental human needs of these groups [6].

Basis of law

The right to procreate is a fundamental human right, a natural human right with both natural and social attributes. The freedom of the procreative will, embodied in the right to procreate, constitutes an essential aspect of the subject’s mental form of existence and plays an indirect role in the preservation and continuation of the subject’s material form of existence [7]. Given that it concerns the autonomy of major matters of personal life, countries have enacted corresponding laws to implement and guarantee human rights. At the international level, the standards of human rights are primarily enshrined in international conventions. In 1968, the Tehran Declaration, adopted by the United Nations World Conference on Human Rights, asserted that parents have the fundamental human right to decide freely and responsibly the number and spacing of their children [8]. The World Population Plan of Action, adopted in 1974, defines reproductive rights as the fundamental right of all couples and individuals to decide freely and responsibly the number and spacing of their children and to have access to information, education, and means to that end [9]. The Convention on the Elimination of All Forms of Discrimination against Women, which was adopted by the General Assembly of the United Nations in 1979, is notable for including reproductive rights in an international convention for the first time [10]. Currently, the concept of reproductive rights has not been legally codified in China, and the theoretical community has not yet reached a unified understanding of the concept. It is widely acknowledged that the right to procreate encompasses the right of citizens to reproduce and raise their offspring through natural or artificial insemination of both sexes, conception, pregnancy, and delivery, as well as asexual reproduction, in accordance with the law.

Article 33, Clause 3, of the current Chinese Constitution explicitly states that the State respects and protects human rights, including the right to procreate, which should be protected by the Constitution. As society and civilization have developed to the present stage, people are gradually realizing that single or non-spousal persons should also enjoy the right to procreate [11]. This norm is tantamount to cutting off an important way for GRSA of people, such as those who are not married or are widowed, to realize their right to procreate. In recent years, there has been a significant advancement in the recognition of reproductive rights in China. Chapter IV, Article 29, of the Jilin Provincial Population and Family Planning Regulations, as amended in 2021, stipulates that women who have reached the legal age of marriage and who are childless, if they elect not to marry, are explicitly permitted to adopt legal medically ART to give birth to a child [12]. This represents a significant advancement in the protection of reproductive rights for GRSA and is of seminal importance.

Marx posited that rights can never exceed the economic structure of society and the cultural development of society constrained by the economic structure [13]. Similarly, legislation must also evolve in accordance with the changing times. In response to demands and suggestions from various sectors of society, the National Health Commission has initiated the drafting of the Regulations on Assisted Reproductive Technology [14].

The practical significance

Fertility needs and technical support

A social problem is frequently the consequence of a profound and pressing real need. According to research data, as of June 2021, the total number of ART cycles performed in Mainland China exceeds 1 million per year, with a clinical pregnancy rate of approximately 40% [15]. In recent years, the live birth rate of fresh embryo transfer cycles, AIH/AID cycles, FET cycles, and PGD/PGS cycles has also been significantly improved in China [16]. The extensive application of ART has created favorable technical conditions for the reproduction of GRSA.

In 2021, the National Bureau of Statistics released the Final Statistical Monitoring Report on the Outline for the Development of Chinese Women (2011–2020). This report revealed that the proportion of female students in all types of higher education exceeded that of male students [17]. Furthermore, it is demonstrated that in countries worldwide, the university graduation rate of women was significantly higher than that of men [18]. For women with higher education, it may be challenging to find a partner with the desired income and qualifications. This may be one of the reasons why they choose to freeze their eggs or become single mothers [19]. Oocyte cryopreservation and embryo cryopreservation are considered the gold standard for single women who wish to preserve their fertility for a variety of reasons, resulting in a higher likelihood of pregnancy [20]. In addition to this, there is also the option of ovarian tissue freezing. Although the Chinese government has banned ART for single women [2], the attitude of the population is more positive. A study conducted in East China revealed that 36.9% of 750 female university students expressed interest in egg freezing. Additionally, 60% of respondents indicated that marriage should not be a prerequisite for egg freezing, and 56.7% supported the establishment of an egg bank in China [21]. The Ethics Committee of the American Society for Reproductive Medicine (ASRM) states that all requests for assisted reproduction should be treated equally, regardless of marital or partner status or sexual orientation [22]. The European Society of Human Reproduction and Embryology (ESHRE) has a favorable stance on oocyte cryopreservation in adult women in response to age-related declines in fertility and offers expert counsel to ensure the implementation of such procedures [23, 24]. Countries such as the UK and Spain have explicitly stated in legal provisions that single women are allowed to perform ART, and countries such as Canada and New Zealand have set a minimum age for the use of this technology [25]. The extant literature indicates that single parents can and do provide their children with a safe and secure environment. Some studies have found no significant differences in mental health and childhood adjustment between single-parent and two-parent families [26, 27].

The LGBTQ + community, which encompasses lesbian, gay, bisexual, transgender, and queer individuals, represents a significant yet understudied demographic. While same-sex couples are increasingly opting for adoption, a growing number of LGBTQ + communities are exploring alternative avenues for obtaining genetic offspring, including ART [20]. Cisgender same-sex female (SSF) couples require the assistance of donor sperm in order to conceive. This can be achieved through autologous in vitro fertilization (AIVF), reciprocal or shared in vitro fertilization (RIF), or the use of donated embryos. The use of donor embryos is often more cost-effective than the use of donor gametes, yet it is controversial due to its special status. Cisgender same-sex male couples have a more limited range of options and require both an oocyte donor and a gestational carrier [20]. A total of 114,000 same-sex couples are raising children in the United States. Of these, 24% are female, 8% are male, and 68% are raising biological children [28, 29].

Surrogacy may be beneficial for individuals who are infertile due to congenital uterine hypoplasia, severe congenital uterine anomalies, hysterectomy, and uterine dysfunction [30]. Patients who are unable to become pregnant due to serious medical conditions, such as heart or kidney disease, may also benefit from surrogacy. This technique is often considered a last resort for patients who have experienced repeated implantation failures in assisted fertilization [31, 32]. Internationally, there is considerable variation in the attitudes of different countries towards surrogacy. In China, Germany, Italy, and Spain, surrogacy is categorically prohibited. Some countries permit altruistic surrogacy but prohibit commercial surrogacy, including the UK, Canada, and South Africa. In the United States, the legal framework for surrogacy varies from state to state. However, the majority of states do permit surrogacy [33].

Single mothers who have lost an only child are often accompanied by a strong desire to have children as well. According to data from the seventh population census, the size of China’s mothers aged 50 and over who have lost their only child in 2020 will be about 2,888,000 [34]. For single mothers who are no longer married, the options of artificial insemination, IVF-ET, or intracytoplasmic sperm injection (ICSI) may be effective ways to get pregnant [35]. As women age, ovarian function gradually weakens, and the number and quality of eggs decline. This results in a decreased pregnancy rate for autologous IVF-ET and an increased miscarriage rate [36, 37]. In contrast, donor egg IVF-ET is an effective method of obtaining a pregnancy for women of advanced age, as it successfully addresses the issue of conception in premature ovarian failure [38].

China is a large eastern country with a population of more than 1.4 billion, and the large population base makes the total number of GRSA not to be underestimated. The diverse cultural backgrounds of the population in this region result in differing ART-related policies and regulations, as well as varying levels of government attention to the reproductive needs of GRSA, when compared to those in Western countries [33]. Consequently, the moderate liberalization of ART policies for special populations in China represents an important case study and reference point for other countries.

Changing views on marriage and fertility under the current population situation

There is data indicating that the marriage rate in China has been steadily decreasing from 2013 to 2020 (Fig. 1). An official from the Ministry of Civil Affairs has stated that the two primary factors contributing to the observed decline in the marriage rate are the reduction in the size of the population of women of childbearing age during the period of high fertility and significant shifts in attitudes towards marriage and fertility, respectively [39]. In 2022, China’s population experienced negative growth (Fig. 2) for the first time in nearly 60 years, drawing significant attention to the closely related fertility data and its implications for future population trends. According to the data from the National Bureau of Statistics, the total fertility rate of childbearing women in China was 1.3 in 2020, which declined to 1.05 in 2022 [40, 41]. Empirical evidence indicates that women of childbearing age intend to have an average of 1.76 children in 2017, 1.73 in 2019, and 1.64 in 2021. Fertility intentions continue to decline [39].

Fig. 1.

Marriage registration in China from 2005 to 2020 [42]

Fig. 2.

Birth rate, mortality rate, and natural growth rate in China [43]

Traditional Chinese moral standards and behavioral habits have historically linked marriage and reproduction together. However, it should be recognized that being single, getting married, and having offspring are all autonomous choices for individuals in their lifestyles. It is important to recognize that marriage and procreation are not inherently linked, and that non-marriage and procreation are not absolute opposites [15]. Modern ART has opened up new avenues for the realization of reproductive needs in GRSA.

In 2021, the Central Committee of the Communist Party of China and the State Council issued the Decision on Optimizing Reproductive Policies to Promote the Long-term Balanced Population Development. This announcement signified the implementation of the three-child policy in accordance with the law, in order to cope with the severe test of the country’s declining birth rate and aging population [44]. On February 15, 2023, the Sichuan Provincial Health Commission initiated the implementation of a revised version of the Measures for the Administration of Birth Registration Services in Sichuan Province. Article 5 of the revised Measures removes the previous requirement that the registrant be married [45]. This allows for the registration of both legitimate and illegitimate children as births, in accordance with current social needs. Under these circumstances, it is clear that the “one-size-fits-all” ART ban can no longer be adapted to the current state of demographic development, and the implementation of a proactive policy on ART is of particular importance.

Limiting factor

The National Health Commission has released information indicating that technical risks and potential health hazards to parents and offspring have become one of the reasons for severely restricting the use of ART [14]. In contrast to the relatively non-invasive nature of ART in men, the procedure is often invasive in women and carries certain technical risks that affect women’s health. Further long-term follow-up data is required to confirm the safety of ART offspring [46]. It has been demonstrated that exposure to ART is associated with an increased risk of adverse pregnancy outcomes, including adnexal torsion, gestational diabetes, and pre-eclampsia in women [47–49]. Additionally, there is a higher prevalence of preterm and large-for-gestational-age births among those who have undergone ART [50, 51]. Moreover, ART has been linked to a range of adverse perinatal outcomes, including cerebral palsy, neurodevelopmental disorders, and cancer [52–54]. In addition to the medical issues that must be addressed, the application of ART technology is also confronted with a number of practical problems, including cultural background, social management, and ethics. In traditional Chinese culture, the value placed on life and family ethics has been a long-standing tradition. The act of procreation without marriage challenges the long-established link between marriage and procreation, which has been a fundamental aspect of traditional Chinese culture. This challenge to the established norms of society is not conducive to social harmony and stability [55]. The commercialization of ART beyond medical indications is likely to result in the misuse of the technologies for profit, which will challenge the principles of social good and ethics and trigger adverse social impacts [56]. In conclusion, this thesis proposes a moderate approach to openness, rather than a fully open one.

Improvement of the fertility policy system

The fundamental human need for reproduction cannot be entirely constrained by legal means. The lag in management has been revealed as technological means have advanced and the values of the population have been renewed. The implementation of a well-established and temperate fertility policy system would be beneficial for the safe, orderly, and efficient advancement of ART in the GRSA. In consideration of the disparities in regional development, the implementation of ART can be conducted in stages across the country for GRSA that meet specific criteria. These include egg freezing for single women who meet certain age requirements, as well as single women who meet the age requirements and decide not to marry and have no children, as well as those who are unable to have children due to sexual orientation or other reasons, who can use ART to obtain a child. It is recommended that the registration and enrolment procedures for offspring in education and healthcare be simplified, that marriage restrictions be gradually abolished, and that the social identity of the offspring of single-parent ART be enhanced. Concurrently, the inspection and supervision of ART organizations should be reinforced in order to prevent the illicit exploitation of ART for financial gain. Furthermore, individuals preparing to undergo ART should be fully informed of the advantages and potential safety risks of the technology. Additionally, health insurance policies should be combined to ensure that ART is prioritized for medical purposes and to guide young people to have children naturally at the appropriate age [57].

Conclusion

It is important to consider a number of factors when implementing an appropriate liberalization of ART. However, it is also essential that the government addresses the basic rights and realistic needs of citizens. The moderate liberation of ART provides GRSA with more reproductive choices and technological support for respecting and realizing reproductive freedom. Due to the current policy and regulatory restrictions on ART, GRSA still face difficulties in reproduction. Fortunately, the health authorities have begun to pay attention to the practical needs of the public and consider the rationality of current policies and regulations. Due to the influence of traditional Chinese culture and the government’s paternalistic intervention, it still takes some time to moderately liberalize ART for GRSA.

Data Availability

Data sharing is not applicable as no new data were created or analyzed in this study.

Declarations

This research did not involve human participants or animals and did not require any informed consent of any type.

Conflict of interest

The authors declare no competing interests.