A woman's right to freeze her eggs: Chinese society debates

On 9 May, an unmarried Chinese woman began her final appeal at the No. 3 Intermediate People's Court in Beijing against a hospital's denial of access to freeze her eggs. The unprecedented case has reignited the public's discussion on single women's reproductive rights.

Although the case has not been ruled, the attention and debate among Chinese netizens are focused on whether the plaintiff Xu Zaozao (pseudonym) will be allowed to freeze her eggs after more than four years of appeal, and whether this case will prompt China to revise the regulations and allow single women to use assisted reproductive technologies (ARTs) such as egg freezing.

In today's China where child bearing has become a "top priority", the debate involves the right of a woman to make autonomous decisions about her body and reproductive functions, as well as the medical and social issues that may entail from the technology. It seems that the issue of legalising egg freezing for single women is not as straightforward.

According to reports from The Beijing News and The Paper, Xu had sought egg freezing services from Beijing Obstetrics and Gynecology Hospital at Capital Medical University in 2018 when she was 30 years old. After completing her health checks, the hospital refused to provide the service as Xu was unmarried and the eggs would be frozen for non-medical reasons. Subsequently, Xu sued the Beijing hospital in 2019 on the grounds that the hospital had violated her personal rights.

Xu alleged that by refusing to freeze the eggs of single women, the hospital discriminated against women, infringed her personal rights, and violated the relevant provisions of the Law on the Protection of the Rights and Interests of Women on gender equality and the elimination of all forms of discrimination against women. China currently allows single and married men to donate or freeze their sperm.

However, the Beijing Obstetrics and Gynecology Hospital argued that they were unable to freeze the eggs of single women due to the series of psychological and societal problems that may arise from freezing eggs to delay childbirth, and acted in accordance with the laws, regulations and technical specifications for the protection of the legitimate rights and interests of women and children.

The case went to trial in December 2019, but the judge could not decide on a ruling because it involved a great deal of medical and legal policies, as well as ethical and technical issues related to egg freezing. After the case was heard again in a closed session in September 2021, the court overruled Xu's claims in July 2022, but Xu decided to file an appeal.

In addition to defending her rights and interests, Xu claimed that she chose to persevere because she hopes that the case will give single women the opportunity to exercise their bodily and reproductive autonomy. She also hopes that society will be more tolerant and supportive of women's reproductive choices, and that the relevant policies will be improved.

According to relevant information, although the Chinese Civil Code does not explicitly ban unmarried women from freezing their eggs, then Ministry of Health (now called the National Health Commission) had put forth restrictions on service providers in the Specifications for Assisted Reproductive Technology on Humans (《人类辅助生殖技术规范》) issued in 2001. According to the document, ART will not be granted to couples and single women who do not meet the provisions of the country's population and family planning law.

The Management Measures for Assisted Reproductive Technology on Humans (《人类辅助生殖技术管理办法》) issued that same year also states that women can only retrieve and freeze their eggs if they have malignant tumours, and they could do so before undergoing radiation therapy and chemotherapy; or if they are infertile and unable to undergo in vitro fertilisation in time.

People who support the easing of restrictions on egg freezing believe that the aforementioned regulations that were put in place over two decades ago are already outdated following technological advancement and changes in mindset. Others also believe that if Xu wins the case, it would provide a precedent for the revision of the regulations.

However, whether Xu, who is about to turn 35, is able to win the case also affects her chances of preserving her eggs and extending her childbearing years. After her second trial, she told Chinese media that her eggs can still be frozen after four years, and that she will still choose to freeze them at the Beijing Obstetrics and Gynecology Hospital if she wins the case. However, she revealed that she might go overseas to freeze her eggs if the outcome of the second trial was unsatisfactory.

Chinese netizens displayed mixed reactions to the case. Some lamented that after so many years since egg freezing technologies have matured, it is surprising that the case of a single woman wanting to freeze her eggs is still the first of its kind. Others praised Xu for her determination and courage to speak up for women's rights.

But some netizens believe that Xu is playing the devil's advocate, asserting that she can freeze her eggs overseas like everyone else if she really wants to.

Chinese people are rather familiar with discussions about single women freezing their eggs despite the procedure being illegal. In 2015, Chinese actor and director Xu Jinglei publicly said that she had frozen nine of her eggs in the US in 2013 when she was 39 to safeguard her option of having a child in the future.

During an interview with vistastory.com, Xu described egg freezing as the world's only "medicine to treat regret" (后悔药). She believes that egg freezing is a medicine for treating regret that can be prepared in advance but is limited by age. "You can't do it anymore even if you want to once you reach a certain age," she shared.

Due to her statement, which was deemed quite progressive at the time, Xu Jinglei became known as the first person to freeze her eggs in the Chinese entertainment industry. Subsequently, media outlets revealed that mainland Chinese actors such as Li Bingbing and Michelle Ye, as well as Hong Kong actors such as Charlene Choi and Joey Yung had also undergone egg-freezing procedures.

After the celebrity effect brought egg freezing to the public eye, anonymous women took to the Chinese internet or media to share their egg-freezing experiences in the US, prompting the emergence of numerous intermediary agencies. China's 2023 report on ART (《中国辅助生殖研究报告2023》), released in February by renowned Chinese economist Ren Zeping, found that over 60% of respondents hope to preserve their fertility through egg freezing, with those aged between 30 and 34, especially those with high academic qualifications, being most willing to do so.

In this context, those who support egg freezing for single women believe that this is a way to respect and guarantee women's reproductive rights, as well as to help women balance their careers and family, allowing them to have children when they are more capable of raising them. They also argue that even though egg freezing for unmarried women is illegal in China, there is nothing to stop those who are willing and financially able from having the procedure done overseas. Due to technological progress, opening up this option will give more people the right to choose.

However, even in the US, where egg freezing is legal, there are still controversies surrounding its feasibility and effectiveness.

Data show that each egg retrieval process takes two to three weeks, which includes receiving injections to stimulate egg production and to promote the growth of the eggs to a mature size. After around 35 hours, a surgery under general anaesthesia is performed to retrieve 10 to 20 mature eggs using a puncture method, followed by the rapid freezing of the eggs using liquid nitrogen.

According to The New York Times, the average cost of egg retrieval ranges from US$8,500 to US$14,000, while egg storage costs around US$500 per year. Although scientists have been researching the technology to freeze and thaw eggs since the 1990s, it wasn't until 2012 that the American Society for Reproductive Medicine removed the procedure from the list of "experimental treatments", allowing medical insurance to cover related costs.

Besides the high costs, egg retrieval also carries risks, including bleeding and infection during the surgery, side effects from anaesthesia, and the hormonal effects of ovulation-inducing injections on women's bodies.

The report stated that while egg freezing is no longer an experimental treatment, it is also not a cure-all for fertility issues. A survey conducted in 2022 among 500 respondents showed that the success rate of conceiving a child using frozen eggs was only around 39%. However, under the most ideal conditions - where the woman is younger than 38 years old and more than 20 eggs are thawed at once (requiring at least two egg-freezing cycles) - the success rate can go up to around 70%.

The American College of Obstetricians and Gynecologists website also states that egg freezing is recommended mainly for women having cancer treatment that will affect their future fertility, and that there is not enough research to recommend routine egg freezing for the sole purpose of delaying childbearing.

Opponents of egg freezing argue that women who choose to freeze their eggs are likely to opt for surrogacy when they are older and want to have children, and may even push for legalising surrogacy, as they did for egg freezing.

For example, Xu Jinglei sparked controversy in 2017 when she publicly stated that she would most likely opt for surrogacy to have a child, while fellow actor Zheng Shuang was also blocked in China due to her controversial use of a surrogate. Surrogacy, which is clearly defined as illegal in China, is more contentious than egg freezing and involves more complex ethical and moral issues and potential social problems.

In 2021, in response to inquiries, the Chinese National Health Commission clarified that providing healthy people with ARTs such as egg freezing as commodities beyond medical needs would inevitably lead to the abuse of profit-oriented technologies.

However, in an interview with China Red Star News in March 2023, Liu Xin, director of the Center for Medical Law and Ethics Research at the China University of Political Science and Law, said that egg freezing and surrogacy are two different matters. "If they are linked too much, there may not be any room for egg freezing to move forward," he remarked.

Liu believes that many women currently face career pressures and difficulties finding suitable partners, but are not ruling out marriage and children in the future. "So if it is due to social factors that women want to freeze their eggs, as long as we have the resources and the women agree, I think we can do it," he said

Notably, in an interview with the Legal Daily two years ago, Liu held a completely different attitude. In January 2021, he said that legalising egg freezing for single women would create more problems, such as encouraging the rise of surrogacy. "We absolutely cannot simply legalise egg freezing for single women," he stressed.

Many like Liu have changed their attitudes due to the enormous social and reproductive pressure in China in recent years, with a declining birth rate and women being less willing to have children, and population security becoming an urgent issue.

A survey released this year showed that the childless rate among Chinese women is rapidly increasing, from 6.1% in 2015 to nearly 10% in 2020. The rate of population decline in China is also significantly faster than previously expected, with the first negative growth in more than 60 years recorded in 2022.

In recent years, several members of the National People's Congress and the Chinese People's Political Consultative Conference have proposed various measures to allow unmarried women to have children, and moderately relaxing the use of ARTs such as egg freezing. The meeting of the Financial and Economic Committee of the 20th Central Committee of the Chinese Communist Party in early May also emphasised the need to establish a sound system of support policies for childbearing, and promote a child-friendly society to maintain a moderate level of fertility and population size.

For Chinese women of childbearing age who are not inclined to have children, egg freezing is undoubtedly an alternative for them and China. For women who choose not to have children when they are young due to the economic pressure of child-rearing, they now have an opportunity to "turn back", which can also help improve the overall birth rate of the country.

Of course, if egg freezing services are opened up without any restrictions, it will inevitably bring health risks, commercial risks, and ethical and moral social issues. The authorities will have to think carefully to avoid rejecting the option altogether because of a few drawbacks, and to fully utilise this technology for the benefit of all parties involved.

This article was first published in Lianhe Zaobao as "中国单身冻卵会合法吗？".

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